# M.D. v. Abbott

> District Court, S.D. Texas · December 17, 2015 · 152 F. Supp. 3d 684

URL: https://www.frixlaw.com/law-library/cases/7235439

## Case

- **Full name:** M.D. bnf Stukenberg v. Greg ABBOTT
- **Court:** District Court, S.D. Texas
- **Decided:** December 17, 2015
- **Citations:** 152 F. Supp. 3d 684; 2015 U.S. Dist. LEXIS 168621; 2015 WL 9244873
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Jack
- **Judges:** Jack
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7235439

## How later opinions describe it (automated extraction)

- concluding that the inadequacy of Department’s number, geographic distribution, and array of placements for children in a licensed or verified foster care setting “places children far from their home communities, separated from their siblings, and in inappropriate placements,”…
- noting "Texas's [permanent managing conservatorship] children [are] shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm"
- observing that Texas foster children in the permanent managing conservatorship of the Department “almost uniformly leave State custody more damaged than when they entered”

## Opinion text

MEMORANDUM OPINION AND VERDICT OF THE COURT
Janis Graham Jack, Senior United States District Judge
Named Plaintiffs brought this class action under 42 U.S.C. § 1983 against officials of the State of Texas. Plaintiffs claim that Texas violates their Fourteenth Amendment substantive due process rights, including “the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services” by how the State and its officials manage the Department of Family and Protective Services and the departments under its control. The Court has subject matter jurisdiction over this case under 28 U.S.C. § 1331 . Because the issues to be' decided are fact intensive, the Court’s opinion is lengthy.
*689 TABLE OF CONTENTS
I. BACKGROUND .. .689
A.Procedural History ... 689
II. FINDINGS OF FACT AND LAW ...690
A. Overview of Texas Foster Care ...690
B. Plaintiffs’ Claims .-. .693
C. Constitutional Rights .. . 695
D. Evidence Summary ... 700
1. Reports ... 700 ■ *
2. National Standards ... 701
3. Child and Family Service Reviews ...702
4. Witnesses .. .703
a. Fact Witnesses ... 703
b. Expert Witnesses ... 709
5. Named Plaintiffs .. .718
a. M.D...718
b. D.I ... 728
c.S.A.,,731
d. A.M . .737
e. J.S ...741
f. H.V., J.V, and P.0 .. .745
g. Z.H...758
h. K.E ...760
i. L.H. and C.H .. . 765
j. J.R., M.R., and S.R .. .770
k. S.S ...771
L.A.R...772
III. PRELIMINARY ISSUES .. .773
IV. DISCUSSION .. .776
A. General Class ... 776
1. DFPS is Deliberately Indifferent Toward Caseload Levels ... 790
2. DFPS Substantially Departs from Professional Judgment Toward CVS Caseworkers ... 797
B. Licensed Foster Care Subclass ...798
1. Insufficient'Oversight. .798
a. DFPS is Deliberately Indifferent Toward RCCL Operations .. .804
b. DFPS Substantially Departs from Professional Judgment Toward RCCL
Operations .. .806.
2. The State Maintains an Inadequate Placement Array .. .808
a. DFPS is Deliberately Indifferent Toward its Placement Array ... 813
b. DFPS Substantially Departs from Professional Judgment Toward its Placement Array .. .816 .
C. Foster Group Home Subclass ... 817
1. DFPS is Deliberately Indifferent Toward Foster Group Homes ... 820
2. DFPS Substantially Departs from Professional - Judgment Toward Foster Group Homes ... 820
V. REMEDY .. .822
VI. CONCLUSION .. .828
VII. GLOSSARY .. .828
I. BACKGROUND
A. Procedural History
Plaintiffs are minor children in the Permanent Management . Conservatorship (“PMC”) of the Texas Department of Family and Protective Services (“DFPS”). 1 Plaintiffs filed suit through their next friends on March 29, 2011, seeking injunc-tive relief against Rick Perry, Governor of Texas; Thomas Suehs, Executive Commissioner of the Texas Health and Human Services Commission; 2 and Anne Heiligen- *690 stein, Commissioner of DFPS (collectively “Defendants”), in their official capacities. 3 (D.E. 1). Shortly thereafter, Plaintiffs filed a Motion for Class Certification. The Court granted their motion, holding that the requirements of Fed. R. Civ. P. 23 had’been met. (D.E. 49).
Defendants filed an interlocutory appeal of the class certification to the Fifth - Circuit Court.of Appeals pursuant to Fed. R. Civ. P. 23(f). (D.E. 63). While the appeal was pending, the Supreme Court .decided Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 , 131 S.Ct. 2541 , 180 L.Ed.2d 374 (2011). In light of Walr-Mart, the Fifth Circuit vacated the class certification order and remanded the case. M.D. ex rel Stukenberg v. Perry (M.D. I), 675 F.3d 832 (5th Cir.2012). Plaintiffs filed a second Motion for Class Certification in October 2012. (D.E. 160). After a three-day hearing in January 2013, .the Court found that the requirements of Fed. R. Civ. P. 23(a), as explained in Wal-Mart, were satisfied. The Court certified a General Class and three subclasses on August 27, 2013. M.D. v. Perry (M.D. II), 294 F.R.D. 7 (S.D.Tex.2013). The certified classes are defined as follows:
a. General Class: all children now, or in the future, in the Permanent Managing Conservatorship of the State of Texas;
b. Licensed Foster Care Subclass: all members of the General Class who. are now or will be in a licensed or verified foster care placement, excluding verified kinship placements;
c. Foster Group Home Subclass: all members of the .General Class who are now or will be in a foster group home; and
d. Basic Care General Residential Operation Subclass: all members of the General Class who are now or will be in a general residential operation and who are or will be receiving solely non-emérgency, Basic childcare services.
Id. at 67 . The Court denied certification of a fourth subclass for children in unverified kinship placements because it lacked adequate representation. Id. at 63 . Defendants filed an untimely Petition for Permission to Appeal the Class Certification Order, which the Fifth Circuit dismissed on November 19, 2013. M.D. ex rel. Stukenberg v. Perry, 547 Fed.Appx. 543 (5th Cir.2013).
II. FINDINGS OF FACT AND LAW
Pursuant to Fed. R. Civ. P. 52(a), the Court makes .the following findings of fact and conclusions of law. Any finding of fact that also constitutes a conclusion of law is adopted as a conclusion of law) Any conclusion of law that also constitutes' a finding of fact is adopted as a finding of fact. All of the Court’s findings of fact and conclusions of law are based upon a preponderance of the evidence. . ■
A. Overview of Texas Foster Care
The Texas Department of Famüy and Protective Services is the agency; responsible for protecting the State’s children, elderly, and disabled. Two-DFPS divisions are pertinent to this case: 5 Child Protective Services (“CPS”) and Child Care Licensing (“CCL”). Both divisions work directly with families, children, and childcare providers to protect all of Texas’s children, whether or not they are in foster care. (DX 31 at 6-7). CCL -is made up of two divisions: the Residential Child Care Licensing (“RCCL”) division-focuses on protecting children living in licensed foster care placements; the Performance Management Unit (“PMU”) provides quality assurance *691 for all of DFPS. Id. at 163, 171. John J. Specia, Jr. (“Specia”) is the Commissioner and overall chief executive officer of DFPS. Id. at 4. He is DFPS’s seventh Commissioner since 2004. An .Assistant Commissioner heads each division: Lisa Black (“Black”) is Assistant Commissioner for CPS) Paul Morris (“Morris”) is Assistant Commissioner for CCL. 4 Specia, Black, and Morris.each acquired their position after this case began.
When CPS determines that it is not safe for a child to live with her legal guardian, CPS petitions a court to remove the child and to obtain Temporary Managing Con-servatorship (“TMC”).. (DX 31 at 80). If TMC is granted, DFPS (through CPS) takes custody of the child, placing her in a temporary living arrangement with a certified caregiver or a family member. TMC lasts up to one year unless,a court extends it another six months. Id. at 80. CPs’s goal for each child is “permanency,” which is achieved when a child returns home after it is safe, moves .in with a relative long-term, is adopted by a new family, or ages out of foster care at age 18. 5 Id. at 73, Permanency is the “most important well-being issue” for foster children because it removes them from foster care and into stable environments where they better develop into successful adults. • (D.E. 302 at 27, 38). As Commissioner Specia testified, “I want good foster care, but the answer is permanency.” (D.E. 331 at 48).
If the child has not achieved permanency at the end of TMC, the child enters the State’s Permanent Managing Conservator-ship. (DX 31 at 80). There are approximately 17,000 children in TMC and 12,000 children in PMC at any given time. (Id. at 94; DX 119 at 72; DX 123). The change from TMC to PMC is significant. The- act of designating children a “permanent” part of a foster care system is unique to Texas. (D.E. 299 at 60). Unlike TMC, PMC is considered a final order .similar .to reunification, adoption, or aging out. (DX- 31 at 80). ..
In contrast with TMC- children, PMC children do not have -the same court deadlines or internal DFPS deadlines that their CVS caseworkers need to meet. (See D.E. 306 at 71). For example, Texas requires permanency review .hearings once every four months (for TMC children, but only once every six months for. PMC children. Tex. Fam. Code Ann. §§ 263.305 , 263.501. Likewise, Texas requires at least two permanency planning meetings and a status hearing for TMC children, but there is no such requirement for PMC children. See id. at § 263.001 et s'eq. Caseworkers also must review TMC children’s service plans four times in the first year, while PMC children’s service plans are' only reviewed twice a year. (D.E. 311 -at 12-13). CPS Regional Director Judy Bowman (“Bowman”) testified that a child’s service plan is critically important and functions-as a road map for children’s path to permanency. Id. at 12. Also unlike TMC children, many PMC children do not have an attorney ad litem, to set hearings, and file' pleadings with a court, or notify a court when the child needs assistance. (D.E. 299 at 60; D.E. 323 at 68). Most PMC children also do not have a Court Appointed Special Advocate (“CASA”), who are appointed by judges to watch over and advocate for foster children, even though a child’s CASA “usually is the only person who truly knows the child and knows how the child is really doing.” (PX 1988 at 17). 6 *692 Thus, the State effectively deprives many PMC children of an individual ■ advocate. Anna Ricker (“Ricker”), the attorney ad litem and next friend of J.S., H.V., and P.O., testified that her clients in PMC “get ignored more.” (D.E. 326 at 226). Karen Langsley (“Langsley”), another attorney ad litem who represents TMC and PMC children, testified that there is significantly less attention paid by caseworkers to children once they enter PMC. (D.E. 323 at 67-68). As seen in the record, PMC children tend to receive fewer visits from primary caseworkers, visits that are less meaningful and more rushed, and overall more cursory casework. As one report explained, “Though the State’s responsibility for the child’s life and well-being does not change — and arguably increases — the attention paid to the child’s cases diminishes drastically. There is often a sense that the ‘clock stops ticking? when the child enters Permanent Managing Conservatorship.” Id. at 15. Although all of the permanency options are available to PMC children, the State often “just maintain[s] them in foster care until they age[ ] out.” (D.E. 323 at 89-92).
DFPS has four service levels for children in its care, depending on a child’s physical and psychological needs: Basic, Moderate, Specialized, and Intense. (D.E. 328 at 91). The higher the service level, the more the State pays the foster care facility. (D.E. 322 at 90-92). Placements must be licensed to provide for children at specific service levels. Therefore, a child’s service level dictates which placements are available to her. See id.
PMC children are placed in a variety of residential settings. Approximately 90% of these placements are managed by private child-placing agencies (“CPAs”) that contract with the State. (DX 119 at 72). DFPS directly manages the remaining 10%. In both cases, RCCL is ultimately responsible for inspecting, investigating, and licensing. (DX 31 at 163-64).
Foster family homes are traditional foster homes that contain one to six children. (DX 109 at 1273). The State verifies these facilities and provides training and financial support to the caregivers. The verification process involves screening and inspecting the home to ensure it meets the requirements for the type of care it will provide. Foster group homes — facilities unique to Texas — contain 7 to 12 children but are otherwise almost identical to foster family homes. (See id.; DX 119 at 22). They are regulated and receive financial support, but, unlike other larger facilities, are not required to have awake-night supervision. Foster family and foster group homes can be “therapeutic,” meaning that the caregivers receive additional training to look after children with higher levels of care. Facilities that contain 13 or more children are called general residential operations (“GROs”). (DX 109 at 1273). They are subject to extensive regulations and receive financial support. GROs appear to have no capacity limit. One GRO in North Texas is authorized to house 437 children. 7 *693 Residential treatment, centers (“RTCs”) are a type of GRO that provide therapeutic treatment “for children with serious emotional disturbances or mental health issues.” (PX 1864 at 101; see also DX 109 at 1273). Most of Texas’s RTCs are in 3 of the State’s 11 DFPS Regions, with a disproportionate number around Houston, and none south of San Antonio. '(D.E. 327 at 203). 8 GROs and RTCs are also called “congregate care facilities.” Foster family homes are the least restrictive, most family-like placement. Foster group homes, GROs, and RTCs are progressively more restrictive.
Texas also uses kinship placements, 9 in which a child is placed with a relative or someone with .a longstanding and significant relationship with the child or the child’s family. Kinship placements, whether verified or unverified, must be approved by DFPS and have a home assessment. (DX 109 at 430, 1173). If verified, they undergo the same licensing requirements as a foster family 'home, the caregivers have the same training requirements as foster parents, and the homes receive the same financial assistance as foster homes. If unverified, they are eligible for limited monetary assistance and the caregivers are not required to complete the training provided for foster parents.
Texas’s foster care system has a checkered history. In 2009, the Texas Legislature and Governor Perry formed the Texas Adoption Review Committee “to take a hard look at the Texas foster care system.” (PX 1964 at 2). The Committee conducted a ten-month review, which included testimony from DFPS employees, foster care advocates, policy analysts, foster and adop-five parents, CPAs, and experts from ten areas of DFPS. Id. at 8. The Committee reviewed articles, reports, and publications, including oné by the Child Welfare League- of America (“CWLA”), one by Specia (not yet DFPS Commissioner), and a report by Texas Appleseed that had previously been submitted to the Texas Supreme Court Commission for Children, Youth, and Families.' Id. at 25-28. After drafting ■ its recommendations, the 2009 Committee unearthed a report from 1996, produced'by a similarly charged committee that was formed by Governor George W. Bush. Id. at' 2, 7. The 2009 Committee found that 11 of its 14- general recommendations were made in 1996, leading it to conclude that “many of the same problems identified in 1996” had not been fixed. Id. at 2, 7-12. The Committee released its final report in December 2010. At the outset the report notes that, despite the good intentions and hard work of the people involved in Texas’s child welfare system, “there is increasing evidence to show that our foster care system is sometimes doing more harm to our children than good.” Id. at 2.
B; Plaintiffs’ Claims
Plaintiffs’ claims have changed substantially over the course of this litigation. In their Original Complaint, Plaintiffs alleged a variety of problems with Texas’s management of foster 'care and claimed that the State’s mismanagement violated the rights of children in the State’s. PMC. (See D.E. 1). The Fifth Circuit vacated the first Class Certification'Order, doubting whether Plaintiffs could “even advance a due process claim based on a bare finding that *694 Texas has ’organized or managed’ DFPS improperly.” M.D. I, 675 F.3d at 841 n. 3. In response, Plaintiffs narrowed and re-characterized their allegations, and proposed four subclasses. The Court certified one General Class and three subclasses. M.D. II, 294 F.R.D. 7 ; supra Section I.A. For each certified class, Plaintiffs allege that DFPS’s “policies and practices result in structural deficiencies” that place the class members “at an unacceptable risk of harm” in violation of the- Fourteenth Amendment. (D.E. 215 at 2, 17, 18, 19). The. Court understands Plaintiffs’ argument as saying that each policy and practice does not, on its own, have to result in a' constitutional violation. Although , some policies and practices may reach. this threshold, Plaintiffs also argue • that the State’s combined policies and practices for each certified class create structural deficiencies, which violate class members’ Fourteenth Amendment right to be free from an unreasonable risk of harm while in State custody. See Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir.1986) (“In determining the constitutional question, we need not separately weigh each of the challenged institutional practices and conditions, for we instead look to ‘the totality of conditions.’”) (citation omitted). Plaintiffs’ specific claims break down as follows:
On behalf of the General Class:
(1) DFPS does not employ enough primary conservatorship caseworkers, , causing those workers to have excessive caseloads, which prevents them from properly fulfilling their required duties, protecting the children in the State’s custody.
(2) Caseworkers’ excessive, caseloads increase caseworker turnover, further worsening caseloads and initiating a vicious cycle.
(3) By not having the time and resources to adequately monitor the children assigned to them, caseworkers cannot ensure that Plaintiffs are free from an unreasonable'risk of harm while in the State’s care.
(4) These practices and policies, separately and combined, cause an unreasonable risk of harm to all General Class members.
(5) The State’s practices and policies substantially depart from professional judgment.
(6) The State is aware of these risks, yet refuses to assess or address them.
On behalf of the Licensed Foster Care Subclass:
(1) The State does not exercise sufficient oversight ■ of the facilities in which foster children are placed by failing to properly investigate and inspect those facilities and hold them accountable for licensing violations.
(2) Defendants do not properly track incidents of child-on-child abuse.
(3) The State maintains an insufficient number, geographic distribution, and array of placements, such that foster children cannot be placed in homes or facilities appropriate for their needs, in their home communities.
(4) These practices and policies, separately and combined, cause an unreasonable risk of harm to all Licensed Foster Care Subclass members.
(5) The State’s practices and policies substantially depart from profes- - sional judgment.
(6) The State is aware of these risks, yet Refuses to assess or address them.
On behalf of the Foster Group Home Subclass:
(1) The State’s foster group homes are deficient:
(a) Group home caregivers are not properly trained or qualified; '
*695 (b) Group homes lack sufficient professional staff;
(c) Group homes do not require 24-hour awake-night supervision like other congregate care facilities; and
(d) The State does not restrict the placement of unrelated children of different genders, ages, and service levels in the same group home.
(2) These practices and policies, separately and combined, cause an un- - reasonable risk of harm to all Foster Group Home Subclass members.
(3) The State’s practices and policies substantially depart from professional judgment.
(4)-The State is. aware of these risks, yet refuses to assess or address them.
On behalf of the Basic Care GRO Subclass:
■ (1) The State places children who need only Basic-level childcare services in - GROs (and sometimes- RTCs) due to a lack of appropriate placements.
(2) Placing Basic-level children in GROs causes neglect, maltreatment, and institutionalizes otherwise healthy children.
(3) This practice causes an unreasonable risk of harm to all Basic Care GRO Subclass members.
(4) The State’s practice substantially departs from professional judgment.
(5) The State is aware of this risk, yet refuses to assess or address it.
C. Constitutional Rights
The State generally does not have an obligation to protect citizens from private harm. DeShaney v. Winnebago Dep’t of Soc. Servs., 489 U.S. 189, 195-96 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989). However, “in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection.” Id. at 198-200 , 109 S.Ct. 998 . These duties arise when the State takes a person into custody, thereby limiting that person’s freedom to act on her own behalf. Id. at 200 , 109 S.Ct. 998 . Custody, in other words, creates a '‘special relationship” between the State and that person, which triggers a constitutional duty to provide basic needs. Id.
The State’s affirmative duty of care and protection for people in custody was first identified for prisoners. Estelle v. Gamble, 429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976), held that the Eighth Amendment’s prohibition of cruel and unusual punishment obliged the State to provide medical care for prisoners. By depriving inmates of the ability to care for their own medical needs, the State assumed that affirmative duty. Id. at 103-04 , 97 S.Ct. 285 . These rights were extended into the Fourteenth .Amendment in the context of patients involuntarily committed to state mental institutions. In Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1982), the Supreme Court reasoned, “If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed — who may. not be punished at all — in unsafe conditions.” Id. at 315-16 , 102 S.Ct. 2452 ., The Supreme Court held that patients in these settings possessed the right to “food, shelter, clothing, medical care,” and safe living conditions, which the State must provide. Id. Likewise, pretrial detainees who are injured while in police custody have the constitutional right to medical care. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 , 103 S.Ct. 2979 , 77 L.Ed.2d 605 (1983). Although the Eighth Amendment does not apply to pretrial detainees because they have not been convicted of a ..crime,. the Fourteenth Amendment provides .the affir *696 mative duty of care. See Youngberg, 457 U.S. at 315-16 , 102 S.Ct. 2452 . These cases stand for the straightforward proposition that when the State restrains an “individual’s freedom to act on his own b.ehalf— through incarceration, institutionalization, or other similar restraint of personal liberty,” the State assumes an affirmative duty to provide basic needs. DeShaney, 489 U.S. at 200 , 109 S.Ct. 998 .
State custody of a child creates a “special relationship” that triggers substantive due process protections. The Fifth Circuit first recognized this special relationship, and the State’s corresponding duty to provide “constitutionally adequate care,” in Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir.1990). More recently and more explicitly, the Fifth Circuit held that, under the Fourteenth Amendment, the State owes its foster children “personal security and reasonably safe living conditions.” Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir.2004); see also Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 859 (5th Cir.2012) (recognizing foster care as one of the “strictly enumerated” situations where the State assumes a duty of care sufficient to create a special relationship). Put another way, foster children have the right to be free from an unreasonable risk of harm.
The Fifth Circuit is not alone. With near unanimity, the other circuits have found that states owe a duty of care to their foster children. See e.g., Tamas v. Dep’t of Social & Health Servs., 630 F.3d 833, 846-47 (9th Cir.2010); James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir.2006); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir.2000); Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir.1994); Yvonne L. ex rel. Lewis v. N.M Dep’t of Human Sens., 959 F.2d 883, 892 (10th Cir.1992); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 848-49 (7th Cir.1990); Taylor ex rel. Walker v. Ledbet-ter, 818 F.2d 791, 795 (11th Cir.1987); Doe v. N.Y. Dep’t of Soc. Servs., 649 F.2d 134 , 144-45 (2d Cir.1981); Connor B. ex rel. Vigurs v. Patrick (Connor B. I), 771 F.Supp.2d 142, 160 (D.Mass.2011) (“Courts have found, with apparent unanimity, that [a special] relationship exists in the foster-care context.”); see also DeShaney, 489 U.S. at 201 n. 9, 109 S.Ct. 998 . Most circuits consider this right “clearly established” for qualified immunity purposes. See Tamas, 630 F.3d at 846-47 (surveying the circuit courts and finding that, by 1996, foster children had a “clearly established” liberty interest in safe foster care placements).
A foster child’s right to be free from an unreasonable risk of harm “encompasses a right to protection from psychological as well as physical abuse.” R.G. v. Koller, 415 F.Supp.2d 1129, 1156 (D.Haw.2006); see also LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C.Cir.1993). Moreover, foster children “have a substantive due process l'ight to be free from unreasonable and unnecessary intrusions into their emotional well-being.” Marisol A. by Forbes v. Giuliani, 929 F.Supp. 662, 675 (S.D.N.Y.1996); accord K.H. ex rel. Murphy, 914 F.2d at 848 (“The extension to the case in which the plaintiffs mental health is seriously impaired by deliberate and unjustified state action is straightforward.”). Harm, both psychological and physical, can be inflicted in a variety of ways, including neglect, physical abuse, sexual abuse, and psychological maltreatment. “[T]he Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.” K.H. ex rel. Murphy, 914 F.2d at 851 (citing Youngberg, 457 U.S. 307 , 102 S.Ct. 2452 ).
Foster children need not wait until actual harm occurs before obtaining relief. *697 This has been made most explicit in the prison context, where the right is characterized as the right “not to be subjected to the unreasonable threat of injury.” Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir.1985). Unreasonable threats of injury to prisoners, such as poor fire safety conditions, are themselves violations of a prisoner’s constitutional rights. Id. at 784 ; see also Battle v. Anderson, 564 F.2d 388, 395 (10th Cir.1977). As such, prisoners can obtain relief from unreasonable conditions even when no fire has occurred. The risk of harm is the legal injury. In the foster care context, a structural deficiency that puts foster children at an unreasonable risk of harm is the legal injury. See Hernandez, 380 F.3d at 881 (explaining that “the risk of severe physical abuse to a foster child’s bodily integrity” is the legal injury).
Defendants acknowledge foster children’s constitutional right to personal security and reasonably safe living conditions. Defendants argue, however, that foster children do not possess an “unlimited” right “to be free from an unreasonable risk of harm,” (D.E. 277 at 29; D.E. 359 at 47), and that the Court should “resist the temptation to augment the substantive reach of the Fourteenth Amendment.” (D.E. 163 at 22 (quoting Griffith, 899 F.2d at 1435 )). The Court disagrees. There is no difference between harm in general and harm to personal security and reasonably safe living conditions. All harms affect either a foster child’s person or environment, and the right to be free from an unreasonable risk of these harms is unlimited. The Court holds that foster children have a Fourteenth Amendment substantive due process right to be free from an unreasonable risk of harm caused by the State.
Plaintiffs also claim that foster children have a Fourteenth Amendment right to the “most appropriate care, treatment, and services.” (D.E. 215 at 19). Plaintiffs have aimed too high, at least by substantive due process standards. Foster children have the right to “minimally adequate” care, treatment, and services such that it prevents an unreasonable risk of harm. Youngberg, 457 U.S. at 321 , 102 S.Ct. 2452 ; Hernandez, 380 F.3d at 880 . They do not have a constitutional right to the most appropriate care, treatment, and services.
To succeed on their substantive due process claim, Plaintiffs must show that: (1) the State has acted in a way that breached the duty of care it owes to foster children in its custody,, namely the duty to -keep them free from an unreasonable risk of harm; and (2) the State action that did so rises to the requisite level of culpability. In making the latter determination in challenges to executive action, the State will be liable if its alleged action “shocks the conscience.” Cnt y. of Sacramento v. Lewis, 523 U.S. 833, 846 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998); Rochin v. California, 342 U.S. 165, 172 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952); Hernandez, 380 F.3d at 880 . Determining the level of culpability that “shocks the conscience” in the foster care context, however, has proven elusive. Courts have articulated culpability standards to further define the test, two of which — deliberate indifference and substantial departure from professional judgment — the parties dispute. (D.E. 195 at 48-49).
In Estelle , the Supreme Court held that “deliberate indifference” to a prisoner’s serious medical needs states a cause of action under the Eighth Amendment. 429 U.S. at 106 , 97 S.Ct. 285 . Deliberate indifference is determined by a subjective standard of recklessness: “the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also *698 draw the inference.” Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994)). The State must have consciously disregarded a known and excessive risk to the victim’s health and safety. Farmer, 511 U.S. at 837 , 114 S.Ct. 1970 .
Six years later, the Supreme Court refused to apply the deliberate indifference standard when considering the rights of involuntarily committed patients at mental facilities. Youngberg, 457 U.S. at 321-22 , 102 S.Ct. 2452 . Under the Fourteenth Amendment, as opposed to the Eighth Amendment at issue in Estelle ,, the rights of persons, involuntarily committed to mental facilities are violated if the State substantially , departs from professional judgment. Id, at 323, 102. S.Ct. 2452. According to the professional judgment standard, a decision “if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional .judgment, practice, or .standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. The main difference' between the two standards is that the professional judgment standard does not require the State to know that the person in its custody will be harmed. Youngberg justified the less demanding standard by stating, “Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Id. at 321-22 , 102 S.Ct. 2452 (comparing to Estelle, 429 U.S. at 104 , 97 S.Ct. 285 ).
The Supreme Court discussed, but did not decide, the contours of foster children’s substantive'due process rights in DeSha-ney. The'DeShaney Court explained that it is the deprivation of a person’s liberty, not what motivates the deprivation, that triggers the Constitution’s protection. 489 U.S. at 200 , 109 S.Ct. 998 ; This seems to'signal a uniform liability standard for any person in- state custody, but DeShaney never reached this question. Because the child in DeShaney was harmed in the custody of private actors,'the Court found there was no special relationship between the child and the State, and therefore did not decide between thedelibérate indifference and professional judgment standard.
The Supreme Court’s most recent comment in this area comes from County of Sacramento v. Lewis. 523 U.S. 833 , 118 S.Ct. 1708 . Lewis made clear that both the deliberate indifference and professional judgment standards remain good law, and are simply more precise articulations of the “shocks the conscience” standard. Id. at 850 , 118 S.Ct. 1708 . According to Lewis , “Rules of due process are not ... subject to mechanical application in unfamiliar territory.” Thus, “Deliberate indifference that shocks in one environment may, not be so patently egregious in another.” Id. Young-berg “can be categorized on much the same terms.” Id. at 852 n. 12, 118 S.Ct. 1708 .
In the Fifth Circuit, a foster care plaintiff must prove deliberate indifference to have a substantive due process cause of action. The Fifth Circuit has emphasized that the deliberate indifference test is a “significantly high burden for plaintiffs to overcome.” Hernandez, 380 F.3d at 882 (citing Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211 , 218 (5th Cir.1998)). The test demands “a degree of culpability beyond mere negligence oí even gross negligence; it must amount to an intentional choice, not merely an unintentional oversight.” Hall v. Smith, 497 Fed.Appx. 366, 377 (5th Cir.2012). Liability based on deliberate indifference is inappropriate if- an official can demonstrate “that [she] did not know of the underlying *699 facts indicating a sufficiently substantial danger and that [she was] therefore unaware -of a danger, or that [she] knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent”. Farmer, 511 U.S. at 844 , 114 S.Ct. 1970 . Moreover, an official who is aware of a substantial risk of serious harm is not deliberately indifferent if she “responded reasonably to the risk, even if the harm ultimately was not averted.” Id.
Yet the “high burden” is not insurmountable. To prove deliberate indifference, “it is enough that the state official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Hernandez, 380 F.3d at 881 (citing Farmer, 511 U.S. at 842 , 114 S.Ct. 1970 ). “[A]n obvious showing that the state ... exhibited a conscious disregard for known severe physical abuses in a state-licensed foster home by, itself sufficiently demonstrates deliberate indifference to a child’s right to personal security.” Hernandez, 380 F.3d at 881 . Actual knowledge of a substantial risk of harm can be inferred if “the risk of harm is obvious.” Id. (citing Hope v. Pelzer, 536 U.S. 730, 738 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002)).
Most circuits apply the deliberate indifference standard to foster care cases. See, e.g., Tamas, 630 F.3d at 844 (9th Cir.2010); James, 458 F.3d at 730 (8th Cir.2006); J.H. ex. rel Higgin v. Johnson, 346 F.3d 788, 792 (7th Cir.2003); Nicini, 212 F.3d at 808 (3d Cir.2000); Lintz, 25 F.3d at 305 (6th Cir.1994); Taylor v. Ledbetter, 818 F.2d at 795 (11th Cir.1987); Doe, 649 F.2d at 144-45 (2d Cir.1981). In this case, Defendants argue that deliberate indifference applies.
Plaintiffs, however, point out that some circuits, relying on Youngberg , use the professional judgment standard in foster care cases. After all, foster children bear a closer resemblance to the patient in Youngberg than the prisoner in Estelle : their rights derive from- the Fourteenth Amendment rather than the Eighth, and they -are not in the State’s custody to be punished. The Tenth Circuit, for example, recently used the professional judgment standard in' a foster care case. Schwartz v. Booker, 702 F.3d 573, 580 (10th Cir.2012); see also Yvonne L., 959 F.2d at 893-94 . Although the First Circuit has not decided the issue, two of-its district courts recently used the professional judgment standard. See Cassie M. ex. rel. Irons v. Chafee, 16 F.Supp.3d 33, 43-44 (D.R.I.2014), vacated on other grounds sub nom Danny B. ex rel. Elliott v. Raimando, 784 F.3d 825 (1st Cir.2015); Connor B. I, 771 F.Supp.2d at 163 .
Plaintiffs, also note that courts have decided which standard to apply based on whether the remedy requested is monetary damages or injunctive relief. When injunctive relief is sought, as it is here, some courts use the professional judgment standard. See, e.g., LaShawn A. v. Dixon, 762 F.Supp. 959 , 996 n. 29 (D.D.C.1991); Cassie M., 16 F.Supp.3d at 47 (D.R.I.2014). Deliberate indifference applies for monetary damages, the, reasoning goes, because monetary damages may have a chilling effect on state policymakers. LaShawn A., 762 F.Supp. at 996 n. 29. Courts are less concerned with a chilling effect when Plaintiffs seek only injunctive relief, and therefore apply the less stringent professional judgment standard. Id.
All that said, when deciding whether state action shocks the conscience in the foster care context, cases often come out the same regardless of which standard is applied. See, e.g., Yvonne L., 959 F.2d at 894 (“As applied to a foster care setting we doubt there is much difference in the two standards.”); Connor B. I, 771 F.Supp.2d at 162 n. 4 (“It is far from obvious, however, that the professional judgment standard creates an appreciably lower hurdle *700 for plaintiffs in this foster care case ... in this context the decision seems to matter little.”); LaShawn A., 762 F.Supp. at 996 n. 30 (“The Court notes that although it has applied the professional judgment standard to this case, the result would have been the same had it used the deliberate indifference standard.”).
Again, the main difference between the standards is that the professional judgment standard does not require the State to have actual knowledge that foster children will be harmed. This difference, however, is dulled by Hernandez’s statement that actual knowledge can be inferred when “the risk of harm is obvious.” 380 F.3d at 881 (citing Hope, 536 U.S. at 738 , 122 S.Ct. 2508 ). Yet, in light of the uncertainty, the Court analyzed each claim under both standards. The Court holds that, judged by either standard, Texas’s conduct shocks the conscience.
D. Evidence Summary
The Court carefully reviewed the Named Plaintiffs’ case files, the testimony of 28 fact witnesses and 12 expert witnesses (as well as their expert reports, with a few exceptions), more than 400 exhibits (totaling over 390,000 pages), the parties’ briefs, and the relevant caselaw. For clarity, the Court outlined the more frequently cited reports and national standards, introduced the witnesses, and summarized the Named Plaintiffs’ narratives.
1. Reports
Casey Family Programs. Casey Family Programs is the nation’s largest operating foundation focused on safely reducing the need for foster care. Its mission is to “provide and improve — and ultimately prevent the need for — foster care.” 10 DFPS has contracted with Casey Family Programs on multiple occasions to provide internal reviews and assessments, as well as staff training and professional development. (See, e.g„ DX 61).
Texas Adoption Review Committee. The Texas Adoption Review Committee was created by the Texas Legislature and Governor Perry in 2009 “to take a hard look at the Texas foster care system and to uncover barriers to adoption that exist for Texas’ most vulnerable children.” (PX 1964 at 2). After a ten-month exhaustive review, the Committee released a final report in December 2010 providing recommendations for how DFPS can improve. Prior to releasing its report, the Committee found a report from 1996, produced by a similarly charged committee that was formed by Governor Bush. The 2009 Committee found that 11 of its 14 general recommendations were made in 1996, leading it to conclude that “many of the same problems identified in 1996” had not been fixed. (Id. at 2, 7-12; see also supra pp. 10-11).
Texas Appleseed. Texas Appleseed is a nonprofit organization whose “mission is to promote justice for all Texans by using the volunteer skills of lawyers and other professionals to find practical solutions to broad-based problems facing the most vulnerable — including the State’s foster children.” (PX 1988 at 4). The Court reviewed Texas Appleseed’s 2007 and 2010 reports on Texas foster care. (PX 1966; PX 1988). The 2010 report was commissioned by the Supreme Court of Texas Permanent Judicial Commission' for Children, Youth and Families, of which Specia and Defendant’s expert Dr. Jane Burstain (“Burstain”) were members before joining DFPS. (PX 1988 at 5).
Texas Comptroller Report, Forgotten Children. In April 2004, Texas Comptrol *701 ler Carol Keeton Strayhorn published a report titled: Forgotten Children, A Special Report on the Texas Foster Care System. The 306-page report detailed a number of shortcomings in Texas’s foster care system. Although Forgotten Children is not itself in the record, it was frequently cited and relied on by reports that are in the record. (See, e.g., PX 1966 at 5-6).
Texas Sunset Advisory Commission. The Texas Sunset Advisory Commission is a 12-member group created by the, Texas Legislature to report on the conditions in Texas foster care and find ways to eliminate waste, duplication, and inefficiency. DFPS was mandated to provide unfettered access to the Sunset Commission, including allowing the Sunset Commission to survey all 11,000 DFPS employees, participate in CPS investigations, tour foster care facilities, meet with former foster children, and attend internal DFPS meetings. (PX 1861 at 131). The Sunset Commission'issued its report in May 2014.
The Stephen Group. The Stephen Group is a- highly regarded national business and government consulting firm. The Group has performed multiple child welfare consulting jobs across the country. Specia contracted with The Stephen Group in February 2014 to conduct an operational review of DFPS and CPS to figure out why so many problems remain despite “all the money and [effort] that have been put into the agency, since 2006.” (D.E. 300 at 25; D.E. 331 at 45-46; PX 1993 at 9). Specia voluntarily provided The Stephen Group the same unfettered access that he was required to provide the Sunset Commission.
2. National Standards
Child Welfare League of America. The CWLA is “the nation’s oldest and largest membership-based child welfare organization.” (PX 2114 at 3). The CWLA’s professional standards are universally known arid respected in the child welfare community. The Texas Legislature mentions the CWLA’s. standards in its guidelines for DFPS.
CounciV'ón Accreditation (“COA”). The COA is another respected national nonprofit organization that recommends professional standards for state child welfare systems. The COA’s standards are intended to guide foster care practices. States that meet COA standards are accredited. Only six states, not including Texas, have received COA accreditation.
Plaintiffs frequently refer to the CWLA and COA standards to show that DFPS substantially departs from professional judgment. DFPS argues that a deviation from these standards of excellence does not prove a “substantial departure” from professional judgment. DFPS is correct, in part.
A failure to meet CWLA and COA standards is not a per se constitutional violation. Professional standards, however, can be evidence for or against a constitutional violation. A “significant deviation” from professional standards could itself “constitute a substantial departure from accepted professional judgment that, under certain circumstances, may give rise to. a substantive due process claim ....” Cassie M., 16 F.Supp.3d at 48 . A substantial departure from all relevant professional standards ean also' indicate that a professional was subjectively aware of, and opted to disregard; a substantial risk of serious harm, i.e., that the professional was deliberately indiffererit'. It is beyond question that DFPS is aware of CWLA standards. The Texas Legislature refers to the CWLA in discussing recommended caseloads for con-servatorship workers:- “Professional caseload standards ;.. are established or are recommended for establishment for employees of health and human services agencies by management studies conduct *702 ed for health and human services.agencies or by an authority or association, including the Child Welfare League of America, the National Eligibility Workers Association, the National Association of Social Work' ers, and associations of state, health and human services agencies.” Tex, Gov’t Code Ann. § 531.001(5). Furthermore, as of 2010, Texas (along with 37 other states) was a member of the CWLA. Although Texas did not need to recognize or adopt CWLA standards to become a member, Texas did have to pay dues, which gave it access to resources published or provided by the CWLA. (D.E. 302 at 47; D.E. 325 at 97). • '
Many courts have allowed’- experts to draw on CWLA and COA standards when analyzing foster care systems. Courts generally find that while neither standard imposes legal obligations on child welfare agencies, both are “reflective of the bar to which child welfare agencies are generally expected to measure up.” Connor B. ex rel. Vigurs v. Patrick (Connor B. II), 985 F.Supp.2d 129, 136, 138, 151 (D.Mass.2013); see also LaShawn A., 762 F.Supp. at 964, 966 , (considering CWLA standards a relevant professional standard for assessing the District of Columbia child welfare agency); Kenny A. v. Perdue, 2004 WL 5503780 , at *12 (N.D.Ga. Dec. 13, 2004) (finding, that experts adequately relied on “accepted professional standards,” including those from CWLA and COA). Courts have found these standards relevant because they are .“national in scope” and widely followed by child welfare agencies. Doe ex rel. G.S. v. Johnson, 52 F.3d 1448, 1454, 1462 (7th Cir.1995).
The Court finds that CWLA and COA standards are relevant and admissible to help the Court determine whether DFPS’s challenged policies and practices constitute substantial departures from professional judgment. The Court also finds Texas’s knowledge.of these standards relevant to whether the State is deliberately indifferent toward its polices and practices.
3. Child and Family Service Reviews
Texas relies heavily on its performance on the Child and Family Service Review (“Review”). ’ The U.S.’ Department of Health and Human Services implemented the Review in 2001 to determine which states’ child and family welfare systems met the requirements of Titles IV-B and IV-E of the Social Security Act. (DX 143 at 1). Thé current Review (the- third since inception) assesses states’ performance on seven indicators; (1) Maltreatment in Foster Care; (2) Recurrence of Maltreatment; (3) Permanency in 12'Months for Children Entering Foster Care; (4) Permanency in 12 Months for Children in Foster Care 12 to 23 Months; (5) Permanency in 12 Months for Children in Foster. Care 24 Months or More; (6) Re-Entry to Foster Care in 12' Months; and (7) Placement Stability. Id. The first two indicators relate to children’s safety; the last five relate to children’s permanehcy. On Round 3 of the Review, Texas met the federal standard on six of seven indicators,' falling short on number 5, Permanency in 12 Months for Children in Foster Care for 24 Months or Longer. ’ (DX 147 at 1-18). The State argues that its compliance with these standards “contradicts” Plaintiffs’ claims of conscience-shocking deliberate indifference and evinces the “exercise, not total abdication, of professional judgment.” (D.E. 277, attachment 8, at 5). Defendants’ arguments are inapposite.
Plaintiffs’ claims only relate to children in Texas’s PMC. Of the seven indicators, numbers 3 and 6 do not incorporate any data for PMC children, focusing exclusively on children who have been - in foster care less than 12 months. Numbers 1, 2, 4, and 7 use data for both PMC and TMC children, muddling the ability to draw *703 meaningful conclusions about only PMC children. As Defendant’s expert Burstain testified, “To really understand what’s happening, you have to look at sub-populations” and cannot rely on overall averages. (D.E. 330 at 191). The only indicator that exclusively accounts for Texas’s PMC chil-. dren is the one that Texas failed. (D.E.. 277, attachment 8, ,at 5; DX 147 at 1, 9-10). Yet even if Texas had met the national standard for Permanency in 12 Months for Children in Foster Care for 24 Months or Longer, that does not decide this case. Whether Texas meets the federal permanency standard as it relates to the Social Security Act — which it does not — does not answer whether Texas’s PMC foster, children are placed at an unreasonable risk of harm due to either deliberate indifference or a substantial departure from professional judgment.
Additionally, Texas’s Review performance is based on data it submitted. (DX 143 at 1). As discussed infra, DFPS’s investigations of foster child maltreatment are woefully deficient and often inaccurate, making the State’s self-reported data unreliable. See Section IV.B.l. Even when DFPS discovered deficiencies in a large subset of its investigations, it did not update its submissions to the Review. Furthermore, DFPS does not even track certain abuse, such as child-on-ehild abuse, which is included in the Review. (DX 143 at 2). Texas’s Review performance is therefore provides little, if any, reliable evidence for this case.
4. Witnesses
a. Fact Witnesses
The Court heard from 28 fact witnesses, including six next friends and attorney ad litems of Named Plaintiffs, a leader of a nonprofit that works with former foster children, five former foster children, two former DFPS caseworkers, and 14 current DFPS officers.
Next Friends and Attorney Ad Litems. Karen Langsley is the next friend and attorney ad litem for former Named Plaintiff D.P. Langsley is a solo practitioner who primarily practices in child welfare and family law and regularly represents PMC children and parents in DFPS cases. She has been licensed in Texas since 2004 and currently practices in Austin and the surrounding counties. She was 'one of the first Texas lawyers certified as a Child Welfare Law Specialist by the American Bar Association, through the National Association of Counsel for Children. Langs-ley also sits on the State Bar Committee on Child Abuse and Neglect and annually teaches a day-long continuing legal education course on child welfare. That course is part of a four-day conference on Advanced Family Law, which is the largest seminar of its type in the country. (D.E. 323 at 60-67). Anna Ricker is the next friend and attorney ad litem for J.S., H.V., and P.O, Ricker has served as an attorney ad litem for 17 years, representing around 150 children in Texas’s PMC. She currently has between 10 and 12 PMC children on her caseload. Ricker also represented DFPS for four years as an Assistant District Attorney. She currently practices in West Texas, primarily in Levelland, Little-field, and the .surrounding counties. She often interacts with her clients’ conserva-torship caseworkers. (D.E. 326 at 197-98; D.E. 187 at 89). Javier Solis (“Solis”) is the next friend for S.A. Solis previously worked in the Cameron County District Attorney’s Office prosecuting CPS cases. Since June 2001, Solis has served as an attorney ad litem for over 900 children in DFPS’s custody. He currently practices in Cameron, Hidalgo, and Willacy Counties, representing 55 to 60 children in. any given month. In his capacity-as an attorney ad litem, Solis interacts with conservatorship caseworkers on a daily basis. (D.E. 323 at 6-7). Sarah Stukenberg (“Stukenberg”) is *704 the next friend and attorney ad litem for M.D. She has practiced family law for over seven years-in Texas, mainly representing foster children in Texas’s TMC and PMC, although she sometimes represents parents in CPS cases as well. (D.E. 324 at 211-12). Jennifer Talley (“Talley”) is the next friend for A.M. She has worked in child welfare for over 22 years. Talley worked for one year in a psychiatric hospital, primarily with foster youth, and worked for CPS for 12 years. At CPS, Talley first worked as a conservatorship caseworker with both TMC and PMC children, and then for seven years as a Preparation for Adult Living coordinator for Region 8. She has volunteered at a camp for older youths in foster care for over 24 years. Later, she worked for six and a half years with youths aging out of care through a private foundation and another two years with a CPA, focusing on adolescent adoptions. Her work with the Preparation for Adult Living program focused on ensuring that foster children aging out of care received independent living skills and other necessary post-foster care guidance and support. Through most of her time as PAL coordinator Talley was the sole full-time Region 8 PAL staff member, with only a half-time administrative assistant. The majority of the 800 children she worked with in this program were in Texas’s PMC. (D.E. 323 at 84-88). Estella Vasquez (‘Vasquez”) is the next friend and attorney ad litem for L.H. and C.H. She has practiced family law and criminal law since 2008. Vasquez regularly serves as an attorney ad litem in Cameron County for children and parents in CPS cases. She represents over 100 children per year in such cases, and has represented over 600 children, in Texas’s TMC and PMC as an attorney ad litem. (D.E. 327 at 187-95). Vasquez is also the elected city commissioner for-the City of Brownsville.
Nonprofit Leader. Sandra Carpenter (“Carpenter”) runs Angel Reach, a nonprofit in Conroe, Texas that helps children who age out of foster care. Carpenter initially started Angel Reach to help children and their families in kinship placements. Although Angel Reach still works with kinship placement families, as of 2011 it switched its focus to transitional living programs for youths aging out of foster care, due to the large number of homeless former foster youths living in the Conroe area. Angel Reach provides these aged-out youths with independent living skills and tools. Id. at 11. Angel Reach houses up to 29 former foster youths and provides nonresidential services such as transportation, mentoring, education, and job placement for up to 20 others. Id. Since 2011, Carpenter has worked with approximately 180 former foster youths. Id. at 13. She was a foster parent for 65 children over 16 years. Id. at 6. (D.E. 307 at 4-13)
Former Foster Children. Jordan Arce (“Arce”), Crystal Bentley (“Bentley”), Darryl Jackson (“Jackson”), Patricia Virgil (“Virgil”), and Kristopher Sharp (“Sharp”) are former foster youths who aged out of care. Arce, 19 years old at trial, entered foster care at age 14 and aged out at 18. (D.E. 324 at 48). Arce had six placements, including a children’s shelter, a foster home, a GRO, and kinship placements. Id. at 49, 51-52. His level of care was Basic throughout his time in the State’s custody. Id. at 53-54; see id. at 28-29. Today he is a student at Texas Tech University. Id. at 49. Bentley entered foster care at age 2 and aged out at 18. She was 23 years old at trial. Id. at 61. Bentley is a client of Angel Reach. Id. at 61-62. Bentley is currently a sophomore at Lone Star College and a client of -Angel Reach. Id. at 61-62. Jackson, 18 years old at trial, entered Texas foster care at age 12 and aged out at 18. Id. at 183. While in Texas foster care, Jackson had between 35 and 40 placements, including foster family homes, foster group homes, and RTCs. Id. *705 at 184,187-88. Jackson is a client of Angel Reach. Id. at 183. When he aged out of care, Jackson was referred to Angel Reach by his caseworker, but otherwise received no support or preparation for independent living. Id. at 185. Virgil, 25 years old at trial, entered foster care at age 12 and aged out at 19. Id. at 198. She was placed in several foster family homes, foster group homes, and emergency shelters. Id. at 198,201,207. She too received no preparation or support whén she-aged out of care. Id. at 208-09. Sharp, 24 years old at trial, entered care at age 10 and aged out shortly before turning 18. (D.E. 325 at 163-64). He had around 25 placements, including foster group homes, GROs, and RTCs. Id. at 164-65. Sharp is currently studying social work at the University of Houston Downtown and working with advocacy groups that serve former foster youths who have aged out. Id. at 170, 176. He similarly received no preparation or support before he aged out of the State’s care. Id. at 178-80.
Former DFPS Caseworkers. Beth Miller (“B. Miller”) worked for four and a half years as a CPS conservatorship caseworker, first in San Antonio and then in Abilene. (D.E. 323 at 32). Katrina Voelkel worked for two years as a CPS conserva-torship caseworker in the PMC unit in Lubbock. (D.E. 324 at 8-9).
Cwrent DFPS Officers. Colleen McCall (“McCall”) is the Director of Field Operations at DFPS. (D.E. 305 at 5). She has been at CPS for several decades but has been in her current position since 2005. Id. at 9. McCall’s responsibilities include coordinating with and overseeing CPS regional directors and bringing the concerns of CPS field staff to DFPS leadership. Id. at 10. Caseworkers ultimately report to McCall. Id. She is also tasked with ensuring that-primary conservator-ship caseworkers have manageable caseloads. Id. at 14,17-18.
McCall reports to the Assistant Commissioner of CPS, Lisa Black. (See Attachment 1; D.E. 300 at 5; D.E. 305 at 8-9). Black is CPs’s top executive and reports directly to Specia. (D.E. 300 at 5). Black has been at CPS for approximately 28 years, but has been in her current position only since February 1,2014. Id. at 6. Black spent six years as the regional director' of Region 3 (during which time she reported to McCall). (D.E. 300 at 6; D.E. 305 at 9). Black oversees CPs’s policies, practices, and overall operation, and has ultimate responsibility for conservatorship caseworkers and supervisors. Id. at 6-7. The Court was troubled by Black’s testimony. At trial, Black admitted she had not read multiple high-level reports about problems at CPS, including the 2010 Texas Adoption Review Committee report that discussed CPS caseworkers’ high caseloads and turnover rates. 11 (See, e.g., id. at 33-35, 102; D.E. 323 at 141-42). She. also could not testify about the rate of abuse and neglect in foster care placements, an area for which she is responsible. (D.E. 300 at 45-48). Black made no effort to acquire this information before trial despite being questioned about it at her deposition two months prior. Id. at 47-48. Black is also involved in Foster Care Redesign, the State’s effort to improve its placement array. Id. at 80. As of trial, the State had data on only one of the two contracts it had entered under Redesign. Black did not know basic information about this contract. Id. at 84-85.
Paul Morris, who also reports directly to Specia, is the Assistant Commissioner of CCL, the top executive of that division. *706 (D.E. 301 at 4-5). The Director of RCCL, Darla Jean Shaw (“Shaw”), and the Division Administrator of PMU, Leslie Reed, report to Morris. 12 (D.E. 301 at 7-8, 13; D.E. 323 at 160-61; PX 811 at 1, 4). Morris has an undergraduate degree in Accounting from.the University of Texas at Austin and is a Certified Public Accountant. (D.E. 301 at 6). He, first joined DFPS in 2008 in the Internal Audit division. Id. Morris was appointed Assistant Commissioner for CCL in July 2013. Id, at 5, The Court was also troubled by Morris’s testimony. He had no experience in child welfare before joining DFPS in 2008. (Id. at 6; D.E. 323 at 159). He was hired because of his regulation experience with the U.S. Coastguard. Id. Morris generally defers to Shaw because he “didn’t come into Licensing with a great deal of [relevant] background.” (D.E. 323 at 152-53). Like Black, Morris had not reviewed crucial reports, including several produced by PMU. (See, e.g.t D.E. 301 at 69-71, 94). Morris was often unaware of important information relevant to his division, repeatedly stating that he relied on Shaw to know that information. See, e.g., id. at 62-63, 89-90, 93.
It is clear to the Court that .a main reason DFPS has not improved in the face of decades’ of reports outlining deficiencies and recommending solutions is that there is no institutional memory. Black and Morris never read critical reports about the departments they are charged with overseeing. It is no surprise then that Texas commissions full-scale audits of its foster care system every five to ten years, always reaching the same conclusions, but never producing improvement.
Darla Jean Shaw is the Director of RCCL arid reports to Morris. (D.E. 329 at 5). She has held that position since 2010, but has been at DFPS since 1995 (in CPS and RCCL) as an investigator, caseworker, inspector, supervisor, and district manager. (DX 258). RCCL licenses, investigates, and' monitors Texas’s residential foster care facilities. (D.E. 329 at 5).
Christina Rawls-Martin (“Rawis-Mar-tin”) was chair of the DFPS Council at the time'of trial. (D.E. 3Ó8 at 5). The DFPS Council’s job is to “assist the Commissioner in developing rules and policies” for DFPS and “to study and make recommendations to the Commissioner concerning the management and operations” of DFPS. Id- at 10,13. Rawls-Martin has been on the Council, since 2009 and was named chair by Governor Perry in 2013. Id. at 7-8, Although Rawls-Martin’s term appears to have expired on February 1, 2015, she is still listed as chair on the Council website. 13 Rawls-Martin is also vice-chair and founding member of the Hidalgo and Starr County Children’s Advocacy Center. (D.E. 308 at 11).
Judy Bowman is the Regional Director for CPS Regions 4 and 5, which encompass 38 counties in East Texas. (D.E. 327 at 7, 11). Bowman is the highest-level DFPS employee in Regions 4 and 5 and reports to McCall, Bowman has been at DFPS for more than 39 years, beginning as a caseworker and later being promoted to supervisor, program director, program administrator, and district director before becoming Regional Director in 2005. Id. at 7-10. As Regional Director, she oversees the decision-making programs for investigations, family-based safety services, con-servatorship,- kinship, and family groups in her regions. Id. at 10. Bowman manages approximately 750 employees. Id. at 12-15. There are approximately 160 caseworkers *707 in Region 4 and 95 caseworkers in Region 5, earing for approximately 1950 and 1000 children, respectively. Id. at 14-15, 33-341 Approximately 35% of these children are in PMC. Id. at 33.
Camille Gilliam (“Gilliam”) is the Regional Director for CPS Regions 1 and 9, which encompass 71 counties in West and Northwest Texas. Id. at 56, 59-60. Like Bowman, Gilliam reports to McCall. She has been at DFPS for nearly 34 years, also starting as a caseworker. Gilliam was promoted to supervisor, program director, program administrator, and in 2005 to Regional Director of Region 1. Id. at 56-58. She has been Regional Director of Regions 1 and 9 for the last year, but at different times had also been the acting Regional Director for Region 10 and acting Regional Director for Regions 1, 2, and 9. Id. at 59, 61. There are 114 caseworkers in Region 1 and 75 caseworkers in Region 9 caring for approximately 1600 and 1150 children, respectively. Id. at 63, 67.'
George Cannata is the Deputy Assistant Commissioner for CPS. Id. at 93. He reports to Black. He has been at DFPS for 18 years, working primarily in investigations and family-based safety ’ services, starting as an investigative caseworker before being promoted to supervisor, program specialist, program manager, program director, program administrator, and eventually Deputy Assistant Commissioner in August 2014. Id. at 93-97. His current responsibilities include heading CPS “Transformation.” (Id. at 141; D.E. 313 at 6). Transformation is CPs’s response to the 2014 evaluations by The Stephen Group and Sunset Commission. (D.E. 327 at 141-43).
Jenny Hinson (“Hinson”) is the Division Administrator for Permanency at CPS. (D.E. 314 at 4). She supervises a team of seven subject matter experts and with them is responsible for developing and administering policies and programs for children in DFPS conservatorship. (See id. at 221; DX 259 at 1). She has been in her current position since 2010, but has been at DFPS since 1998. Hinson has worked as a statewide intake specialist, caseworker, supervisor, program director, program administrator, and program specialist. (D.E. 327 at 222-23; DX 259 at: 1-2). While Hin-son focuses on CPS policies that relate to permanence, she seems to know little about how her policies actually affect permanency. Id. at 6-9. For- example, she oversees extended foster care for children who age out, but does not know how many children benefit from that program, or the effectiveness of that program. Id. at 8-9. Similarly, while she said that independent living classes are offered'to all foster children age 16 and up, Hinson does mot know how many children attend , those classes. She believes that number is fewer than 50 out of the 1300-1400 children who age out annually. (Id. at 21-22;' see also DX 24 at 14 (showing that 1410 youths aged out in 2011); DX 119 at 221 (showing that 1328 youths aged out in 2013)).
Gail Gonzalez (“Gonzalez”) is the Director of Placement at CPS and reports to Black. (D.E. 328 at 88, 124; DX 257 at 3). She also oversees the Foster and Adoptive Home Development and Interstate Compact for Placement of Children'programs. (D.E. 328 at 88,100-101; DX 257 at 3). She has been in that position since 2009 but has worked at DFPS (mostly in CPS) since 1988 as a specialist, supervisor, placement team lead, and unit manager. (DX 257 at 1-3). In 2009 Gonzalez was appointed -to the Texas Adoption Review Committee discussed supra, serving as the Committee’s vice-chair. (PX 1964 at 2, 4;* supra pp. 10-11). In her current position, Gonzalez oversees CPs’s placement function, which, at a high level, entails “ensuring that [CPS has] some level of expertise when ... matching children to the best-placement options.”- (D.E. 328 at 104). Her résponsi- *708 bilities also include overseeing policy and practice relating to services for children in State-regulated facilities as well as policy and practice relating to CPAs (for both the 122 private providers that DFPS contracts with and each CPS region when those regions act as CPAs). Id. at 88-89. The Foster and Adoptive Home Development program is responsible for recruiting, verifying, training, and monitoring foster and adoptive homes and families. Id. at 94-96. Gonzalez additionally works with special projects and initiatives, liaises with central and regional leadership, legislators, and other stakeholders, and coordinates and leads implementation of legislative changes. (DX 257 at 3).
Kaysie Reinhardt (“Reinhardt”) is the Director of Foster Care Redesign, Texas’s attempt to improve its placement array. She reports to Black. (DX 260 at 1; PX 811 at 1). She has held that position since 2013, but has been at DFPS since 2000 as a conservatorship caseworker, centralized placement coordinator, lead investigator, supervisor, program specialist (for multiple different programs), and project manager. (Id. at 1-3; D.E. 328 at 178). Before joining DFPS she was a substance abuse counsel- or and a residential counselor at an RTC. (DX 260 at 3-4). In her current position she oversees and manages the implementation of Foster Care Redesign. (D.E. 328 at 178). She is also the head of the Public Private Partnership, the body guiding Foster Care Redesign. Id. at 181.
Frianita Wilson (“F. Wilson”) is the Director of Purchased Client Services for CPS and reports to Black. (D.E. 329 at 53, 56-57; DX 256). She has held that position since 2013. She monitors the private contracted services for residential foster care placements (meaning services provide by CPAs, GROs, RTCs, etc.). Id. F. Wilson had previously worked for DFPS in 1996-2003 in contract management and monitoring before- spending 10 years with HHSC in its contract compliance department. (D.E. 329 at 55; DX 256). The DFPS Contract Oversight and Support division sets the policies and procedures that Purchased Client Services follows in maintaining and managing contracts. (D.E. 329 at 57). Additionally, when Purchased Client Services staff conduct risk assessments (as part of their monitoring of CPAs, GROs, etc.), they submit the results of those assessments to Contract Oversight and Support. Id. at 59.
Christine Maldonado (“Maldonado”) is the Contract Oversight and Support Director at DFPS. (D.E. 329 at 89). She reports to DFPS’s Chief Operating Officer. Id. at 92. She establishes policies, procedures, and training for contract staff, and conducts quality assurance of contract management. (D.E. 329 at 90). Additionally, when receiving risk assessments from Purchased Client Services Staff, Contract Oversight and Support uses the results to adjust its statewide contract monitoring plan. Id. at 59-61. Maldonado has held this position since 2009 and has been at DFPS for over 18 years (primarily in Contract Oversight and Support), as an investigative caseworker, contract manager, policy and technical assistance specialist, and quality assurance team lead. (DX 261).
John Specia, Jr. is the Commissioner of DFPS. He has held that position since December 2012. (D.E. 331 at 21). Specia’s career in child welfare and public service is extensive and commendable. (DX 276). Specia began to practice in child welfare in 1978. Id. at 23. Specia practiced as a child welfare attorney for seven and a half years in Region 8 (for the Texas Department of Human Resources) before becoming an associate judge for the juvenile court in Bex-ar County. Id. at 23-24. He later served as a judge for the 225th District Court in San Antonio, with special jurisdiction in the area of child abuse and neglect, for 18 and *709 a half years. Id. at 24. He eventually helped establish the Texas Supreme Court’s Children’s Commissions as well as various Child Protection Courts throughout Texas. (DX 276 at 1). Further, he helped establish the Bexar County Children’s Court, which provides specialized services for children. Id. Specia was previously vice-chair of. the Texas Supreme Court’s Permanent Judicial Commission for Children, Youth, and Families and chair of the Supreme Court Task Force on Foster Care. Id. Over the years he has received multiple awards, most recently the Texas Appleseed Award in 2014 for his impact on improving the lives of Texas’s most vulnerable children. Id. at 2. As Commissioner, Specia oversees approximately 12,000 employees, including 8000 in CPS. (D.E. 331 at 31).
b. Expert Witnesses
Federal Rule of Evidence 702 requires district courts to act as gatekeepers, excluding expert testimony that is not relevant or reliable. Fed. R. Evid. 702; see also Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 152 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999);. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993). A trial court may consider several non-exclusive factors when evaluating the reliability of, an expert’s opinion, including: “(1) whether a theory or technique can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards and controls; and (5) general acceptance, of the theory in the scientific or expert community.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir.2010) (citing Daubert, 509 U.S. at 593-95 , 113 S.Ct. 2786 ). The list of Daubert factors “neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire, 526 U.S. at 141 , 119 S.Ct. 1167 . District courts have “wide latitude in determining the admissibility of expert testimony, and the discretion of- the trial judge will not be disturbed on appeal unless manifestly erroneous.” United States v. Cooks, 589 F.3d 173, 179 (5th Cir.2009) (quoting Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir.1997)). The safeguards outlined in Daubert are less essential in a bench trial. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir.2000). Regardless of how a court evaluates an expert’s reliability, the object of the gatekeeping responsibility is “to ‘make certain that an expert, whether basing testimony upon professional studies or personal experience, employs iri the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152 , 119 S.Ct. 1167 ; Valencia, 600 F.3d at 424 .
According to these principles, the Court allowed all proffered experts to testify during trial over both parties’ objections. The Court let both parties cross-examine the experts and challenge their opinions during trial rather than conduct separate time-consuming reliability hearings. The Court similarly admitted all -proffered experts’ reports without first determining their relevance or reliability, as those reports supported the experts’ testimony. Defendant's objected to the admission of the expert reports as hearsay. When reviewing the reports after trial, the Court only considered the facts and data that “experts in the particular field would reasonably rely on .., in forming an opinion on the subject.” Fed. R. Evid. 703; see also Daubert, 509 U.S. at 595 , 113 S.Ct. 2786 . The Court disregarded all other parts as inadmissible hearsay. (See, e.g., D.E. 325 at 13-14). Even though all experts were qualified by education, knowledge, or experience, several experts’ opinions were not credible or unreliable. The Court disregarded thé reports and testimony of Drs. Dennis Zeller and Edwin Basham in their *710 entirety and accorded■reduced weight to the reports and testimony of others.
Dr. Dennis Zeller (“Zeller”) is Plaintiffs’ expert, on child welfare performance measurements. (See D.E. 322 at 129:33, 141). Zeller has a B.A. in Philosophy from the University of Oklahoma, a Ph,D. in Philosophy from the University of Texas at Austin, and a master’s in Social Work from the University of Texas at Austin. Zeller is currently the president of Hornby Zeller Associates, Inc., a management consulting firm specializing in child welfare, juvenile justice, mental health,. and public assistance. He and his firm have consulted for 29 states in the area of child welfare. Those consulting projects include analyzr ing whether child welfare agencies are meeting their expected outcomes and compliance goals, performing quality assurance and case reviews, and conducting workload studies to determine the number of caseworkers that a given agency needs. His.firm regularly produces reports in connection with these projects, which include findings as well as recommendations .for improvement. For example, when he and his firm .audited the performance of the Oklahoma Department of Human Services (in 2008-2009), focusing specifically ,on child welfare, they produced a report with 26 recommendations, 25 of which the legislature passed into law. Prior to starting his consulting firm in 1988, Zeller was a program research specialist, supervisor, and later director .of the Policy Analysis Unit at the New York State Division of Family and Children’s Services. In New York, he developed or oversaw the development of regulations for child protective services, proposed legislation for preventive services, and standards for eligibility for preventive services. Before that, between 1977 and 1980, he was a statistician and supervisor of the Survey and Analysis Unit at the Texas Department of Human Services.
Although Zeller, based on his experience and education, was accepted without objection as an expert on child welfare performance measurement, the Court finds Zel-ler’s conclusions unreliable. First, Zeller did not support several of his opinions. His connections between the policies and practices of DFPS and the outcomes for Texas foster children were arrived at with only a cursory review of the actual outcomes for children in Texas’s PMC. See, e.g., id. at 183. For example, Zeller concluded that Texas’s caseworker workloads affect PMC children’s outcomes. His finding, however, was based entirely on a review of other states’ foster care systems. He never analyzed this data for Texas. Id. at 172. He made the same mistake when asserting a connection between the frequency of parental visits in foster care and PMC children’s outcomes. Id. at 181. Second, Zeller failed to provide context for his conclusions. He testified that 75% of children in PMC who were separated from their siblings had no sibling visitation over a given three-month period, but Zeller did not know how many children comprised that 75% figure or how many sibling groups were separated in PMC during that three-month period. Id. at 184-90. Lácking context, the Court cannot'determine how often siblings áre separated. Zeller repeated these mistakes throughout trial. See id. at 193-96, 199-203, 206-11. The Court therefore cannot verify the reliability of his testimony' and report. The Court disregards Zeller’s report and testimony in their entirety and any part of testimony by other experts that relied on Zeller’s data or report.
Dr. William Lee Carter (“Carter”) is Plaintiffs’ child psychology expert. He has been a licensed psychologist for over 31 years. (D.E. 326 at 69-70). Carter received his B.A. in Psychology as well as his M.S. and Ed.D. in Counseling Psychology from Baylor University. (PX 2015 at 38 (filed *711 under seal)). Over his career, he has worked directly for school districts, hospitals, and clinics, working almost exclusively with children. See id. at. 39-40. Garter also spent five years as the Director of Psychology at an RTC. Id. at 40. He has published eight books relating to the field of child psychology and welfare. Id. Carter has performed around 750Q psychological evaluations of children and youths, two thousand of which were of children involved with CPS,, and provided counseling services for another one thousand children in Texas psychiatric hospitals and RTCs. Carter currently consults,for CPS, several CPAs, a juvenile detention center, a. special education co-op, an advocacy center medical advisory board, and an RTC. Id. at 38-39. Carter has conducted many expert psychological examinations for DFPS and for both plaintiffs and defendants in criminal and civil matters. Id. at 2. In the last five’years, he has consulted or testified as an expert in over 200 cases, most often on behalf of the State of Texas in child sexual abuse prosecutions. (See id. at 158-70; D.E. 326 at 71).
Carter conducted comprehensive psychological evaluations of some of the Named Plaintiffs in 2012 and conducted fóllow-up evaluations in 2014. (PX' 2015 at 3 (filed under seal)). His evaluations included a clinical interview with each child, an observation of child-caregiver interactions, a personal history questionnaire, an intelligence test, a behavioral assessment, and a risk evaluation. Id. He also reviewed the children’s DFPS' case files- and, when possible, interviewed their treatment providers and caregivers. Id. Carter paid particular “attention to the progression of each Named Plaintiffs psychological well-being over the course of time spent” in foster care. Id. Carter found that the experiences of the Named Plaintiffs while in DFPS custody, including the psychological harm that they suffered, were typical for the Texas foster children he evaluated and counseled over the years. (D.E. 326 at 132-33, 194). The Court finds Carter’s reports and testimony relevant, reliable, and admissible.
Daryl Chansuthus (“Chansuthus”) is Plaintiffs’ expert on continuous quality improvement and appropriate staffing levels for oversight functions in child welfare systems, (D.E. 324 at 88). She has, among other degrees, a master’s in Social Work from the University of Tennessee at Knoxville. (D.E. 324. at 74). She ,began her career in social work before joining the Tennessee Department of Children’s Services (“DCS”) (Tennessee’s CPS equivalent) in 2002 as a compliance monitor. In 2004, Chansuthus was promoted to director of the Quality Assurance and Continuous Quality Improvement division. Id. at 80. In 2006, she was promoted to the newly created executive director position and was given responsibilities over the accreditation, evaluation and monitoring, policy and planning, program accountability review, and licensing divisions. Id. at 81. Part of her oversight of the accreditation division included helping Tennessee become accredited by the COA. Id. at 82. In both positions she reported directly to the Commissioner of DCS. Id. She also helped ensure Tennessee’s compliance with the settlement agreement arising from Brian A. by Brooks v. Sundquist, 149 F.Supp.2d 941 (M.D.Tenn.2000). (PX 2022 at 3). Further, when Chansuthus was executive director, she helped design and implement a continuous quality improvement structure for' DCS, which determines how well the agency performs its required tasks, and whether those tasks lead to desired outcomes. (D.E. 324 at 79-80).
■ In 2007,. Chansuthus left Tennessee’s CPS equivalent and became the executive director of the Tennessee Center for Child Welfare, a consortium of university social work departments that aided Tennessee’s *712 CPS. Id. at 77, 83. In that role, she worked primarily with DCS staff to identify practice strengths and weaknesses and to provide training and support to address the areas of identified weakness. (D.E. 324 at 77, 83). In 2013, she became the executive director of the Wo/Men’s Resource and Rape Assistance Program, where she continues to work -with children and families who have experienced domestic or sexual violence. Id. at 78. She has also worked, since 2007, at the University of Tennessee, first as a clinical assistant professor and then as an adjunct professor, in the areas of social work and child welfare. (PX 2022 at 2-3). The Court finds Chansuthus’s report and testimony relevant, reliable, and admissible.
Dr. Viola Miller (“Dr. Miller”) is Plaintiffs' child welfare systems expert. (D.E. 302 at 6-7). Plaintiffs asked Dr. Miller primarily to review how caseworker caseloads and placement arrays affect PMC children. Id. at 15. Her extensive experience and background in child welfare was unrivaled by any other witness, expert or otherwise, testifying at trial. Dr. Miller’s career in child welfare spans more than 40 years. (Id. at 7, 12; PX 2037 at 64-66). From 1995 to 2003 she served as Secretary of Kentucky’s equivalent to Health and Human Services (Specia’s position), overseeing approximately 10,000 employees and a budget of $950 million. (D.E. 302 at 9-10; PX 2037 at 64). Dr. Miller was then Commissioner of Tennessee’s DCS from 2003 to 2011, overseeing approximately 5000 employees and a budget of $640 million. (PX 2037 at 64). She significantly improved the child welfare systems in both states. (DIE. 302 at 6-7). Since retiring in 2011, Dr. Miller has consulted for child welfare agencies in Massachusetts, Illinois, and Oklahoma, and volunteers on the boards of child welfare organizations. Id. at 12-14. She has authored 24 publications about social work, child welfare, and child development. (PX 2037 at 66-68). She has also over the years presented at countless workshops and conference in those fields. See id. at -69-73. At least one other court recently relied on Dr. Miller’s expert testimony on child welfare systems and caseworkers caseloads in a class action similar to the present case. D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635 (N.D.Okla.2011) (denying- defendants’ motion to de-certify the class after full discover). The Court finds the majority of Dr. Miller’s report and testimony relevant, reliable, and admissible. The Court disregarded any references in Dr. Miller’s report to Zeller’s data or report and any opinions or conclusions offered by Dr. Miller that were based on Zeller’s analysis.
Dr. Caroline Long Burry (“Burry”) is Plaintiffs’ social work expert. (D.E. 325 at 12). She has a B.A. in Sociology from Furman University, a master’s in Social Work from the University of Georgia (with a specialization in families and children), and a Ph.D. in Social Work from the University of South Carolina (her dissertation was based on creating and evaluating a training program for foster parents). (PX 2003 at 113 (filed under seal)). Burry is currently an associate professor of Social Work at the .University of Maryland in Baltimore and chair of the Families and Children specialization within that department. (D.E. 325 at 15). She is licensed at the highest level for a social worker in both South Carolina and Maryland. Id. at 18. She has been a social worker in Georgia and South Carolina and a therapeutic foster parent in South Carolina. (PX 2003 at 118-19). Between 1992 and 2000 she founded and then co-directed the Adoption Center of South Carolina,-which provided adoption-related services to children and families. Id. at 118. She has extensive experience teaching, mentoring, researching, and -consulting in social work and child welfare. (Id. at 18-19; PX 2003 at 113-21 (filed under seal)). She' has also given *713 countless presentations and authored or co-authored many articles, book chapters, and training-manuals in the- fields of social work and child welfare. (See PX 2003 at 121-34 (filed under seal)). For this case, she reviewed the case files of three Named Plaintiffs (S.A., H.V., and A.M.), evaluating each child’s casework. (D.E. 325 at 19-21). The Court finds Burry’s report and testimony relevant, reliable, and admissible.
Mary Dee Richter (“Richter”) is Plaintiffs’ foster group home expert. (D.E. 326 at 5; PX 2014 (filed under seal)). Richter has a B.S. in Education from Northwest Missouri State University and an M.S. in Education from the College of Saint Rose. (PX 2014 at 45 (filed under seal)). She is currently an independent consultant for juvenile justice and child welfare programs. Id. She began her career as a speech pathologist, working with children in various settings. Id. Richter then spent 15 years working with Father Flanagan’s Boys’ Town, an agency operating group homes for foster children in Nebraska, as both an on-site staff member and a manager. (D.E. 326 at 7-9). She started as a group home parent/family teacher, caring (along with her husband) for nine, teenage boys in a group home, and later became the assistant community director for Boys’ Town, supervising nine additional group homes. Id. at 8. She then became the site director for a pilot Boys’ Town branch in Florida, operating first in Tallahassee and later also in Orlando. Id. at 8-9, Richter then worked for five years at the Florida Department of Children and Families (“DCF”) (Florida’s DFPS) as the chief of Permanency Planning. Id. at 9-10. She left the Florida DCF for ten years to be the executive director of the Florida Network of Youth and Family Services, which was a consortium of private CPAs that served approximately 20,000 children each year, before returning to DCF as assistant director for Family Safety. Id. at 11. For the present case, Richter evaluated Texas’s use of foster group homes by considering CWLA and COA standards, Texas state law and DFPS policy, data from DFPS on foster group homes between 2012-14, and seventy investigation files for incidents at Texas foster group homes in 2012. (PX 2014 at 7 (filed under seal)). The Court finds Richter’s report and testimony relevant, reliable, and admissible.
Laurie Bensky (“Bensky”) is Plaintiffs’ expert statistician. Bensky has a B.A. in Psychology and a master’s in Social Work. (D.E. 325 at 187). She is currently a senior policy analyst at Children’s Rights. Id. She previously worked as a foster care caseworker and supervisor. Id. Before joining Children’s Rights she worked at the New York City Administration for Children’s Services (essentially New York City’s CPS), in the Quality Assurance department. Id. at 188. Her testimony laid the foundation for three Plaintiffs’ exhibits, which reflected PMC caseworker caseloads, and the number of children 12 and younger in DFPS custody for more than 18 months (i.e. PMC) that reside in group homes and institutions. Id. The Court finds Bensky’s report and testimony relevant, reliable, and admissible.
Dr. Alan Salzberg (“Salzberg”) is Defendants’ expert who was called to review and rebut Zeller’s report and testimony. (DX 252). Salzberg is currently the director at Summit Consulting, an economics and statistical consulting firm. Id. at 57. While Salzberg has extensive background in statistical consulting, unlike Zeller, he does not have any background or experience in child welfare. (See DX 240; D.E, 328 at. 61). Salzberg did not perform any statistical analyses of his own and did not offer any independent opinions .or conclusions. (See D.E. 328 at 70-71, 80). Because the Court disregarded Zeller’s findings, Salzberg’s testimony was not relevant. (D.E. 328 at 60-64).
*714 Dr. Edwin Basham (“Basham”) is Defendants’ expert psychologist. Basham has a B.S. in Psychology as well as an M.S. in Marriage and Family Counseling from Kansas State University, and an Ed.D. in Counseling Psychology from the University of Northern Colorado. (DX 242 at 2), For the past 25 years he has worked as a contract psychologist for DFPS. Id. at 1. He has also worked as a contract psychologist for a children’s temporary shelter, two juvenile probation departments, and a psychiatric hospital. Id. Before that he was a staff psychologist at an RTC, two psychiatric hospitals, and an outpatient clinic. Id. He has performed over 4,000 psychological evaluations of adults and children over his career. Id. at 3. He has also appeared in court as an expert witness in over 200 cases, the vast majority on behalf of DFPS. Id. at 3-4.
Basham was offered to rebut Carter’s and Burry’s conclusions that the Named Plaintiffs suffered harm in the State’s care. (D.E. 330 at 52). Basham performed forensic evaluations of the Named Plaintiffs in order to compare his evaluations to Carter’s. Id. at 67. The Court disregards Bas-ham’s testimony because of his misconduct and self-contradiction.
In attempting to refute Carter’s conclusion that A.M. suffered harm in the State’s care, Basham shared Carter’s findings with A.M. and asked her whether she agreed. (DX 266 at 7-8 (filed under Seal)). Basham’s conduct is shocking. Many of Carter’s conclusions were'critical of A.M.’s ability to function in society. For example, Carter found that A.M. “does not possess [the] basic tools ... to maintain friendships” and that “she is drastically unprepared for future marriage or family life.” See id. Basham parroted' those findings to A.M. nonetheless. Moreover, A.M. likely believed that- her meetings with Carter were confidential. For a fragile youth such as A.M., who already struggles to trust other people, Basham’s conduct is devastating. (D.E. 326 at 137-38). The kind of damage that Basham may have caused to A.M. is precisely what the Court sought to avoid when allowing these psychological evaluations, and the type of inappropriate conduct that the Court previously warned all parties against.
Basham also contradicted himself during a phone conference with the Court on November 4, 20Í4, describing his interview ■with A.M. differently than he did in his report, (D.E. 330. at 81-82, 108-111). In Basham’s declaration, he purported to reconstruct from his notes his conversation with A.M., directly contradicting the plain language of his written report. (See D.E. 274-2), Basham attempted to explain that he actually read to A.M. statements that Carter attributed to her, which Carter had allegedly noted in his report.- However, several- of the statements that Basham read to A.M. were not attributed to her by Carter, as direct quotes or otherwise, and were instead taken directly from Carter’s actual clinical impressions and diagnostic conclusions. (See PX 2015 at 152-56 (filed under seal)). Basham also impeached himself at trial, describing his interview with A.M. differently than he had in either his report or during the telephone conference. (See D.E. 330 at‘81-82, 108-111). He further admitted that, even though his report said A.M. disagreed with one of Carter’s statements, A.M was actually “ambivalent” about the statement. Id. at 81. Basham showed an overall indifference to A.M.’s well-being, professional standards, and the truth.
Even without these transgressions, Bas-ham’s findings are unreliable. At his deposition in 2012, Basham denied seeing evidence in the Named Plaintiffs’ case files of psychological or ' emotional harm, even though the files for A.M., D.I., and S.A. each contained reports of sexual abuse. Id. *715 at 86-87, 90-93. When pressed' on this finding at trial, Basham first claimed that he misunderstood the question during his deposition. He then said that he ■ never reviewed his deposition to submit corrections. Later, however, after being corrected by Defendants’ counsel, Basham admitted that he did review the deposition and submitted corrections, but just not to that statement. Id. at 86-90. Basham also said that D.I. showed “substantial improvement” since entering foster care. (DX 262 at 21 (filed under seal)). In reality, D.I. suffered three episodes of rape at the age of eight that were “initiated by adolescent boys in the home over a- period of two weeks.” Id. at 56. D.I. is now “very disturbed;” “héavily sexualized,” and “a high risk for sexually harming children.” (D.E. 326 at 190-91). The Court completely disregards Basham’s reports and testimony for this case, and is all too aware that Basham has long provided testimony on behalf of the State of Texas.
Linda McNall (“McNall”) is Defendants’ expert on social work. McNall has a B.A. from Adams State College and á master’s in Social Work from the University of Michigan. (DX 244 at 1). For most of her long career in child welfare she has worked primarily for . the New' Mexico Children, Youth & Families Department (“CYFD”) (essentially New Mexico’s DFPS). (See id. at 1-3; D.E. 329 at 123-26). Unlike Richter, McNall has no experience working directly in, or managing, group homes. (See DX 244). Before joining CYFD she worked with both children and adults as- a social worker and adoption consultant. (DX 244 at 2-3). She joined CYFD in 1989 as an adoption supervisor and was later promoted to county officé manager, policy and procedures bureau chief, adoption program manager, and finally regional manager. Id. at 1-2. McNall retired from CYFD in 2011-and is currently an independent consultant. (D.E. 329 at 127). McNall was offered to rebut Richter’s report and testimohy. (D.E. 329 at 124). She wrote two reports: the first analyzed 49 investigations conducted in foster group homes; the second analyzed 57 others. Id. at 129. She did not perform any independent study of Texas’s foster group homes. (D.E. 319 at 4)., The Court finds McNall’s reports and testimony unreliable.
. First, McNall impeached herself. She admitted at trial that unrelated .children living in a home are exposed to different risks - than related children living in a home; she said the opposite in her report. Id; at 24-25, Second, McNall’s reports say that in the 106 investigations she reviewed, she saw no “indication that any- of the incidents resulted in traumatic or long lasting harm to any of the children involved, éither as victims or alleged perpetrators.” (DX 253 at 11 (filed under seal)). In one investigation reviewed.by McNall, DFPS confirmed that-in a ten-child foster group home, a 14-year-old male foster child-sexually molested a four-year-Old female foster child, causing her vagina to bleed. (Id.-, D.E. 319 at 21-22). The boy had previously inappropriately touched an 18-year-old female foster child and a 13-year-old male foster child in that same home, both of whom had mental retardation.- Id. at 22-23. DFPS- confirmed negligent supervision because the foster parents were on vacation when the boy molested the foür-year-old. Id. It is unclear why McNall opined that there was no traumatic- or long-lasting harm' in any of the reviewed cases, in part because she has no expertise in that area and was not retained to offer opinions on that topic. See id. at 18. Even more troubling, McNall admitted at trial that the above incident could have caused long-term harm, and that she made her statement “probably ... without thinking it through completely.” Id. at 23-24. McNall also admitted at trial, despite stating to the contrary in, her report, that multiple unrelated children living , in one *716 home are exposed to different risks than a similar -number of related children living in a single home. See id. at 24-25. The Court disregards her reports and testimony. ,
Patricia Wilson (“P. Wilson”) is Defendants’ expert on child welfare systems, and was retained to rebut the reports and testimony of Zeller, Dr. Miller, and Richter. (DX 250 at 4; D.E. 329 at 138). She has a B.A. in Education and a master’s in Social Work, both from the University of Kentucky. (DX 238 at 3). She is currently a human services consultant, with an emphasis on child welfare. Id. at 1. P. Wilson’s career in child welfare began in 1973 in Kentucky, first as a front line caseworker, and later as a county office supervisor, working primarily with foster children and parents. (D.E. 329 at 136-37). In 1992, she became a policy and budget analyst and then a budget director in Kentucky’s Cabinet for Families and Children (Kentucky’s HHSC). Id. at 135, 137. During this time, Dr. Miller was Secretary of Kentucky^ Cabinet for Families and Children, and P. Wilson was on Dr. Miller’s staff. See id. at 135. Wilson also worked for two and a half years as a consultant and later as a regional director for the CWLA. Id. at 137. She then worked for a year at a child caring/placing organization in Tennessee before returning to Kentucky in 2007. to work as an executive advisor in its Department of Community Based Services (essentially Kentucky’s DFPS). (Id. at 135,137-38; DX 260 at 4). Between 2008 and 2011, she served as the- commissioner of that agency. (D.E. 329 at 138). -In that role, she was. the number two person in Kentucky’s Health and Social Services System. (D.E. 320 at 8). P.- Wilson stated at trial that, despite disagreeing with Dr. Miller’s expert opinion, she respected Dr. Miller’s professional judgment. (D.E. 329 at 141-42).
Parts of P. Wilson’s report provided little value to the Court. For instance, she extensively analyzed DFPS based on the Child and Family Service Review seven indicators. (DX 250 at 9-30). As discussed supra, Texas’s Review performance provides little relevant evidence to this case. Supra pp. 27-28.
P. Wilson’s credibility was also undermined by the revelation that under her leadership, the Kentucky child welfare agency withheld records relating to Amy Dye, a nine-year-old girl who died in an adoptive home. (See D.E. 320 at 11, 14,17-19). The agency had apparently approved the adoptive placement despite earlier reports of child abuse in the home. See id. at 14. The agency also failed to properly investigate, and did not substantiate, multiple reports from Amy’s school that she was being abused. Id. Following her death, the agency performed an investigation (possibly based on an earlier report of abuse and neglect) and six months later found only that Amy’s adoptive parents were guilty of being “inattentive caregiver[s]” and using “unusual discipline.” Id. at 55-56. The agency took no further action in relation to children still in that home. Id. at 56. Although the circumstances of Amy’s death are troubling, it is not clear how much blame P. Wilson is to blame, even though she was Commissioner of Kentucky’s foster care system at that time. The Court does fault P. Wilson for her agency’s refusal to release to the public the records relating to Amy’s death, a decision which was at least in part P. Wilson’s. (D.E. 320 at 17), At trial, P. Wilson defended withholding the records even though it violated Kentucky law. (D.E. 320 at 17); see also Courier-Journal, Inc. v. Cabinet for Health & Family Servs., 2011 WL 2173921 , at *1 (E.D.Ky. June 1, 2011). Kentucky newspapers had to take the child welfare agency to court to force the release of Amy’s records. (D.E. 320 at 17). The Kentucky court ordered the agency to release the records over P. Wilson’s objections, fined the agency, or *717 dered it to pay the newspaper’s attorneys’ fees, and admonished the agency for turning a “blind eye” to the.child abuse that was reported prior to Amy’s death. Id. at 17-18 . The agency continued to withhold the records until the Governor of Kentucky ordered their release. Id. at 18 . P. Wilson then testified about transparency in child welfare investigations before a joint committee of the Kentucky Legislature, where she said that, in Amy’s case, Kentucky’s child welfare system had “not failed to operate according to the laws and rules of the State.” Id. at 18-23 . Wilson further undermined her credibility when she said at the present trial that, foster care systems should not track child-on-child abuse, which is a critical aspect of foster child welfare. Id. at 22-24 ; see also infra Section IV.B.l. For these reasons, thé'Court accords lesser weight to P. Wilson’s report and testimony.
Dr. Jane Burstain is Defendants’ expert on child welfare policy who primarily rebutted the expert opinions of Zeller and Dr. Miller. (DX 251 at 2). Burstain joined DFPS after this case was filed, and is currently the Director of Systems Improvement for CPS. Id. at 2-8 . Burstain has a B.S. in Finance from the University of Virginia, a J.D. from the UC Hastings College of Law, and =a Ph.D. in Policy Analysis from the Pardee RAND Graduate School. (DX 267 at 1). She began her career in child welfare in 1999 as an attorney at the Children’s Law Center in Los Angeles, California, where she represented children in child welfare proceedings and advocated on their behalves for various social, mental, and educational services. Id. She left, that position in 2004 to pursue her doctorate. Id. After her doctorate, in 2008, she moved to Texas and joined the Center for Public Policy Priorities as a policy analyst, where she, inter alia, researched and wrote briefing papers and reports relating to policy and budget issues at DFPS. Id. In 2012, she assumed her current position- with DFPS. Id. She has authored or co-authored at least 16 articles, reports, and working papers in the field of child welfare. Id. at 5 . In her current 'position, Burstain considers herself and her ten staff akin to ‘“internal consultants.’ ” (D.E. 330 at 144). They analyze how CPS is operating, identify areas for improvement, ' create improvement plans, and track ‘how well those plans are followed -and whether improvement occurs. Id. While she and her staff are not subject matter experts, they take information from DFPS’s subject matter experts and work to turn that information into accessible department policy. See id. at 145 . She reports to Oannata and previously reported to Black. Id.
Before Burstaip joined CPS, she published several reports that were highly critical' of DFPS. At trial, she backtracked and glossed over many of her published comments. (See, e.g., D.E. 310 at 48-59; PX 1871-77). In her current position, Burstain has improperly manipulated DFPS statistics and data. For example, to suppress primary caseworker caseload numbers, Burstain included not only full-time primary caseworkers in her calculation, but also part-time primary caseworkers, secondary workers (who do not have the responsibilities of primary caseworkers), and fictional workers “created out of all the overtime,” which “are not actually even people.” (D.E. 310 at 65-69). On another occasion, Burstain e-mailed DFPS employees to suggest that four foster child deaths be re-characterized to negate the possibility of caregiver negligence. (PX 1711). In that e-mail, Burstain highlighted three cases in which she thought “reasonable minds might disagree about whether the caregivers could have prevented the deaths.” Id. at 1 . One of these cases involved a child with a diagnosed history of Schizophrenia and- Bipolar Disorder who hung herself in an RTC. Id. at 2 . The child *718 had recently been hospitalized for two weeks for suicidal ideations and self-harming behaviors. The child’s level of care required RTC staff to check on her every 15 minutes during the night, but that night the caregiver did not perform the routine checks. Id. Another case involved a three-month-old infant with, multiple medical problems, including, obstructive sleep apnea and a smaller jaw that affected her breathing. Id. at 3 . That child’s foster mother placed her on her side, with- a foreign object (a “vibrating pillow”) in front of her and did not check on her for 30-75 minutes. Id. The foster parent “had been trained on safe sleep practices including the dangers of ... placing an infant in a face-down or side sleeping position and the dangers of placing foreign objects under or around an infant when that infant is sleeping.” Id. Besides the dubious implications of Burstain’s request, it is unclear why, in her exclusively policy-related roie at CPS, and with no background in licensing or investigations, Burstain sent that e-mail in the first place. (D.E. 310 at 27-28, 39-41). Specia said he had’ “no idea” why Burstain inserted herself into this area. (D.E. 299 at 24)'. The Court finds that Burstain was attempting to manipulate' the State’s child fatality statistics. In light of these incidents, the Court assigns lesser weight to Burstain’s expert report and testimony.
5. Named'Plaintiffs
The Court does not base any system-wide findings solely on the Named Plaintiffs’ experiences in foster care. Their experiences, however, paint a similar picture: children often enter foster care at the Basic service level, are assigned a carousel of overburdened caseworkers, suffer abuse and neglect that is rarely confirmed or treated, are shuttled between placements — often inappropriate for their needs — throughout the State, are migrated through schools at a rate that makes academic achievement impossible, are medicated with psychotropic drugs, and then age eut of foster care at the Intense service level, damaged, institutionalized, and unable to succeed as adults. Numerous witnesses testified that the Named Plaintiffs’ experiences are typical for children in Texas’s PMC. (See, e.g., D.E. 326 at 132-33, 216, 225; D.E. 323 at 18; D.E. 324 at 215-17; D.E. 327 at 189-92). The Named Plaintiffs’ narratives are the lens through which the Court viewed Plaintiffs’ systemic and class-wide evidence. The Court has written out these lengthy narratives in part to establish a record,.but also because these children have for too long been forgotten. 14 Their stories deserve to be told.
a. M.D.
M.D. is a class representative for the General Class and the Licensed Foster Care Subclass. At the time of trial, M.D. was 17 years old. She was still in the State’s PMC, but her whereabouts were unknown. She was-presumed to be living “on the street somewhere,” in the Houston area, over 200 miles away from her home community of Corpus Christi, Texas. (D.E. 324 at .230). While in DFPS’s custody, M.D. changed placements 19 times. Id. at 1 RFP CPS 175008-28, DFPS 009007116-17. On four separate occasions while in the State’s care, M.D. was arrested and taken to juvenile detention facilities.- Id,, at DFPS #28544, #28574-75, #30210. She was placed in psychiatric hospitals 11 times and went to' emergency rooms twice for suicidal ideations and cutting. Id. at DFPS # 28399-428, DFPS 009007117-18, 009011721-819. Many of M.D.’s placements moved her far from her siblings, who were *719 not in foster care, and her home community. She had 16 different primary and secondary caseworkers. M.D. attended nine schools over her seven years in State care. Id. at DFPS #28382, 28394, 28397; DFPS 009007119-20, 009008456-60. During fourth grade alone, she attended five different schools. Id. at DFPS0098458-60.
M.D. and her siblings were raised by their maternal grandparents until they died in 2005. Id. at DFPS # 29816. The children then lived with their mother who had a history of drug use with resulting jail and prison sentences. Their mother also had Bipolar Disorder. M.D.’s father lived in Mexico and was never involved in her life. In 2005,' M.D.’s mother • tested positive for illegal drugs. Id. at DFPS #29815-17. When CPS determined that the mother used marijuana and cocaine in the home, CPS found Reason to Believe (“RTB”) neglectful supervision. The mother was sentenced to seven years imprisonment by the State of Texas for testing positive for drugs in violation of a prior probation. Id. at #29934. In February 2006, a maternal aunt took custody of the children to prevent them from entering foster care. Id. at DFPS # 29815-17.
M.D. had significant behavior problems while in her aunt’s care. M.D. was violent toward her aunt, oppositional, and threatened to report fictitious claims of abuse to CPS. Id. at DFPS009014656. In March 2007, at the age of ten M.D. was admitted to a psychiatric hospital to determine if she qualified for long-term psychiatric care and to help her adjust to her medication regimen. Id. at DFPS #29751. While there, M.D. claimed that her much older cousin, who did not live in the aunt’s home, had been sexually- abusing her for several years. Id. at DFPS # 28220-29'. The hospital reported this outcry to CPS. RCCL interviewed M.D. and found RTB that she was sexually abused. Id. at DFPS # 28277, # 28283, #-229847. M.D.’s case files do not indicate that any action was taken as a consequence.
After M.D. was released from the hospital to her aunt, she started acting out at school, became defiant at home, and ran away. Id. at DFPS # 282230-35. She was found by police and while being transported back to her aunt’s, M.D. .assaulted the officer, was;arrested, and taken to a juvenile detention center. M.D.’s maternal aunt refused to take M.D. back in March 2007, and formally relinquished custody of M.D. to CPS .in August 2007.' Id. at DFPS #28231, #29829-38.
Over the next five months,'M.D. was placed in an emergency shelter, a psychiatric hospital, and two different foster homes. She was removed from each foster home into hospitals for self-harming behaviors. Id. at DFPS009011721-36. In November 2007, after her third hospitalization, M.D. was placed in an RTC where she remained for over two' years. Id. at DFPS009011733. M.D.’s behavior problems persisted at the RTC. In March 2009, she assaulted a police officer and á teacher and was taken to a juvenile detention center for a night. Id. at DFPS009012378. In August 2009, she was placed in psychiatric care. Id. at DFPS009011739. . .
In April '2010, M.D. was again hospitalized, this time for “intensifying behavioral issues,” which coincided with a medication change and the incarceration of her brother. Id. at 1 RFP CPS 143178. In May 2010, the RTC gave CPS a'30-day- discharge notice be'cause it considered itself unequipped to- handle her. Id.- at DFPS009015051. M.D. was plated in another hospital,‘"and then moved to a different RTC’s Intensive Psychiatric Transition Program. 15 Id. at DFPS009011755-59. *720 While M.D. was in the Program, in July 2010, CPS' terminated her mother’s parental rights. Id. at DFPS009007915. Soon after M.D. learned of the termination, she became depressed and distanced herself from her peers, in contrast with her previously social, outgoing demeanor. Id. at DFPS009019597, 009019892, 0090132396,
In August 2010, CPS moved M.D. to another RTC. Id. at DFPS009011763. A month later, M.D. had two major incidents. She first attempted to pull pieces of the baseboard off the-wall and hurt herself.- Id. at DFPS009015702. Second, she attacked ari elderly teacher and instigated what the RTC staff called a “riot.” Id. at DFPS009015730. In October, M.D.’s level of care was upgraded from Specialized to Intense. On October 31, 2010, she ran away from the RTC. When she returned the next day, she reported being sexually assaulted and using alcohol and marijuana while away from the RTC. (Id, at 1 RFP CPS 089285, DFPS #901163, #9011998, # 9012334; see also PX 2015 at 31-32 (filed under seal)). She was taken to Denton Regional Hospital for a rape kit. (DX 120 at DFPS009015798-99 (filed under seal)). M.D.’s case files do not indicate the results.
-Once back at the RTC, M.D. alleged that a staff member physically abused-her during a restraint. Id. at 1 RFP 1 RCCL 00611. A nurse at the RTC confirmed that M.D. had a bruise, on her back following the incident. Id. M.D. also alleged that the same staff member sexually abused her and her roommate. Id. at 1 RFP 1 RCCL 00594-618. M.D. did not make the sexual abuse outcry until a year later, by which time the RTC had closed after being put on “Corrective Action/Evaluation” for improper “Medication Storage, Destruction, and Medication Records, Serious Incident Documentation ..., as well as de-escalation, and-Post Discussions -with children in care.” Id. at 1 RFP 1 RCCL 00597. The specific staff member had been fired for an unrelated event. RCCL Ruled Out (“R/O”) M.D.’s sexual abuse allegation “based on a preponderance of the information gathered” because “no outcries were made by the alleged victims” for a year. Id. at 1 RFP 1 RCCL 00604-05.
After another Intensive Psychiatric Transition Program, M.D. was moved to the Hector Garza RTC. Id. at DFPS009011834-36. In April 2011, she. and her roommate accused another roommate of sexually abusing them at night between staff room checks. The allegations were Ruled Out because “staff conducted room checks every 15 minutes,” and “none of the children had any history of sexually acting out or were under any special supervisory precautions.” Id. -at DFPS009013763-64. M.D.’s behavior deteriorated over the next two months. Id. at DFPS009012238. She had to be physically restrained multiple times, sustaining injuries -during two of those restraints. M.D. told her caseworker that the RTC staff purposely provoked her, hoped to see her fail, and were excessively rough during the restraints; Id. at DFPS009012239.
During M.D.’s stay at Hector Garza, she and multiple other residents reported that one staff member often sexually harassed them. Id. at DFPS009014015-22. On one occasion in June 2011, M.D. saw the staff member place his hand underneath her roommate’s bed covers while the roommate was in bed. Id. at DFPS009014015. Three days after an investigation was initiated, the staff member stopped coming to work. Id. at DFPS009014016. After he was fired for .not appearing at work, the sexual harassment investigation was terminated without any . findings. . Id. at DFPS009014016-22. M.D. also accused a different staff member of physical abuse, but RCCL Ruled Out any physical abuse based on lack of “preponderance of the *721 evidence” Id. at DFPS009014023. The RCCL investigator based his finding in part on M.D.’s lack of bruising at the time of her interview and the Hector Garza staff saying that M.D. “would do anything to get moved out of the facility.” Id.
In August 2011, M.D. was arrested for assaulting a teacher. Id. at DFPS009012249. M.D. told the police that she preferred “to remain [in jail] indefinitely” rather than return to Hector Garza. Id. at DFPS009012252. She told the police that the Hector Garza staff used improper restraints, including placing their hands on residents’ faces and throwing them to the ground. Id. at DFPS009093731. M.D, claimed her arms were bruised repeatedly from the restraints. She also said the staff ignored residents fighting amongst themselves. M.D. said she felt unsafe at Hector Garza. Id. As a result, Stukenberg, .her next friend and attorney ad litem, scheduled an emergency hearing to change her placement. Id. at DFPS009014022. At the September 8 emergency hearing, the judge agreed that M.D. should not return to Hector Garza. Id. When M.D. was released from juvenile detention on September 12, she was sent to an RTC where she had previously lived for two months in 2010, and placed in its Intensive Psychiatric Transition Program. Id. at DFPS009011783.
On September 20, after only one week at that RTC, M.D. a'ccused a staff member of sexually assaulting and raping her. Id. at DFPS009014041-42. A psychiatrist who interviewed M.D. the following week believed that she was telling the truth. Id. at DFPS009014Í32. M.D. also experienced extended vaginal bleeding for two weeks following the alleged incident, “even though her period had ended approximately three days prior.” Id. at DFPS009014133, 1 RFP 1 RCCL 00201. The day of the alleged incident, the staff member in question left work early, purportedly due to issues with his blood sugar. Id. at DFPS009014141. M.D.’s caseworker was aware that ‘'‘sexual abuse [was] not new at the facility.” Id. at DFPS009014177. The police stressed that M.D. should have a Sexual Assault Nurse Examiner test “immediately” to aid a possible criminal investigation. Id. at DFPS009014151. Yet by the time a doctor saw M.D. on September 23, it was too late to administer the exam. Id. at DFPS009014149. The doctor performed a vaginal exam instead, and “did not observe any lacerations or tearing that would indicate a violent crime.” Id.- The doctor observed vaginal bleeding but “concluded that to be a result of vaginitis.” Id. It appears that a rape kit was done, but the results were never revealed to M.D., her caseworker, or ad litem. Id. at 1 RFP 1 RCCL 00022, 00421-23. On September 26, the RCCL investigator called the RTC to retrieve M.D.’s clothes and linens for testing, but those items had-been washed. Id. at DFPS009014147. The RCCL. investigator did not find a “preponderance of evidence that abuse occurred,” but made an Unable to Determine (“UTD”) disposition because he could not definitively rule out the allegations. Id. at. DFPS009014154. The staff member was offered his job back following the investigation, on the condition that he never work in the female unit, which he declined. Id. at DFPS009014137.
During the 'investigation, M.D. complained to Stukenberg and her primary caseworker that the RTC staff was “covering for” the staff member she accused of rape, and had begun to “retaliate” against her. Id. at DFPS009014177, 009014185. In particular, one female staff verbally harassed M.D.-, ordering M.D. to stop “spreading rumors” and “stop telling everyone about what happened].” Id. at DFPS009014323-24. Beyond verbal abuse, that staff member allegedly physically abused M.D. during a restraint. Id. at *722 DFPS009014177, 009014185. According to the intake report, the staff member’s “inappropriate physical treatment” of M.D. and “threats caus[ed] emotional injury that results in observable impairment to [M.D.’s] psychological functioning.” Id. at DFPS009014177. RCCL Ruled Out these allegations because there was not a “preponderance of the evidence that abuse occurred.” Id. at DFPS009014338.
’ Besides being mistreated by the RTC staff, M.D. was subjected to inappropriate living conditions. When Stukenberg visited M.D. in October 2011, she observed that M.D. shared a trailer with nine other girls, sharing a single shower and toilet even though regulations prohibit more than eight girls to one shower or toilet. Id. at DFPS009014185. The trailer also smelled of mildew and urine. Id. Stukenberg observed several other violations, such as only one staff was assig

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7235439. Public record. Not legal advice.