Citations
- 390 F. Supp. 2d 1030
Full opinion text
MEMORANDUM OPINION AND ORDER
DE MENT, Senior District Judge.
I. INTRODUCTION
Before the court is a motion for dismissal and termination of the Consent Decree which has governed in the case since 1991. (Doc. No. 714.) The motion which is accompanied by a memorandum brief (Doc. No. 715) was filed by the Honorable Page Walley, the Commissioner of the Alabama Department of Human Resources (“DHR”). The motion is opposed by Plaintiffs. (Doc. Nos. 717, 736.)
Almost seventeen years ago, on November 15, 1988, this class action lawsuit was commenced on behalf of a minor who is known by his initials “R.C.” When the lawsuit was filed, R.C. was an eight-year-old boy who allegedly had been abused by his mother and later neglected by his father. Ultimately, R.C. was placed in the custody of DHR. (Compl. at 1-4 (Doc. No. D.)
While in the custody of DHR, R.C’s welfare allegedly was not much better than it was when he lived with his parents. R.C. was subjected to a series of short-term placements, including confinement in psychiatric hospitals. It was alleged that R.C. was heavily medicated with psychotropic drugs and denied visitation with his father. Eventually, R.C. was placed in a long-tei-m residential treatment facility many miles from home. (Id. at 5-6.)
R.C.’s plight was alleged to be symbolic of the fate of numerous other children under the care of DHR. R.C., on behalf of a class, alleged that the conditions and practices in the child welfare system in Alabama were constitutionally deplorable and in violation of federal statutes. Through class certification, R.C. sought to alleviate these systemic deprivations within DHR’s child welfare system. (Am. Compl. at 16 (Doc. No. 22).) R.C., whose class ultimately was certified by the court, represents a class of children with diagnosed or perceived emotional or behavioral disorders who are in foster care or DHR custody or who are at imminent risk of placement with DHR. (Order (Doc. No. 73); Order (Doc. No. 130).)
Two years into the lawsuit, the parties negotiated a settlement in the form of a Consent Decree which was approved by the court in December 1991. (Consent Decree, entered June 11, 1991 (Doc. No. 235)); (Order approving Consent Decree, entered Dec. 18, 1991 (Doc. No. 252).) The Consent Decree averted litigation which DHR conceded would have resulted in “a clear victory for the plaintiffs” and exposed “devastating” facts. The initials “R.C.” now have become synonymous with this Consent Decree which has been the catalyst for the overhaul and reform of DHR’s child welfare system.
At the core of the Consent Decree is the mandate that DHR reform Alabama’s child welfare system by developing a “system of care” which operates with the aim of achieving specified “goals” and in conformity with thirty “principles.” (Consent Decree ¶ 31 (Doc. No. 235).) Execution of the “system of care” is governed by specific standards and deadlines set forth in the Implementation Plan, also the product of joint agreement by the parties. (Order approving Implementation Plan (Doc. No. 265).)
Termination of the Consent Decree and the Implementation Plan is provided for in paragraph 93 of the Consent Decree, as subsequently amended. (Consent Decree ¶ 93, entered June 11, 1991 (Doc. No. 235), as amended by ¶ 10 of Consent Order Extending Time for Compliance at 3, entered Feb. 11, 1999 (“1999 Consent Order”) (Doc. No. 511).) Placing the burden on Defendant, the termination clause states that
[o]n or after October 1, 2002, the defendant may move for termination of this Decree upon a showing that DHR is in substantial compliance with the requirements of the Decree and of the Implementation Plan and that DHR will remain in substantial compliance after termination of the injunction in this case.
(Id.)
Having presided over the implementation of the Consent Decree for nine years, with the skilled assistance of the court monitor, the undersigned has an intimate understanding of the history and circumstances of this litigation. The undersigned also is very familiar with all facets of the Consent Decree and the Implementation Plan, including the purposes, provisions, and procedures set out therein, as well as with the progress made to date and the obstacles encountered along the way.
Defendant has made great progress and marked improvements in DHR’s child welfare system, including but not limited to its staffing directives, its educational requirements for employees, its funding and its overall day-to-day functions. The court also commends Defendant for DHR’s ability and willingness to respond immediately to any complaint concerning child safety, as well as to cooperate with municipal, county and state law enforcement in all matters pertaining to child endangerment and the prevention of the same. Moreover, the court recognizes Defendant’s recent good faith efforts to comply with the requirements of the Consent Decree, to include Defendant’s prompt response to the issues enumerated by the court at the December 2004 status conference.
Notwithstanding the exceptional strides by Defendant, the parties entered into a voluntary agreement in which they, not the court, set out the governing standards for compliance and the provision for termination of the Consent Decree. While the court is ever mindful that consent decrees are “not intended to operate in perpetuity,” Board of Education v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), termination is premature until such time that Defendant has sustained his twofold burden of showing substantial compliance.
Having carefully considered the arguments of counsel, the relevant law and the record as a whole, the court finds that Defendant has not submitted evidence sufficient to sustain his burden of demonstrating that DHR “is” and “will remain” in substantial compliance with the terms of the Consent Decree and of the Implementation Plan as required for termination of said Decree. (Consent Decree ¶ 93, as amended by 1999 Consent Order.) Defendant’s motion, therefore, is due to be denied at this time
II. JURISDICTION
The Consent Decree’s provisions bestow upon the court the power to resolve disputed matters, shared authority with the court monitor to determine compliance with the Consent Decree, and sole authority to terminate the Consent Decree upon motion of Defendant. (Consent Decree ¶¶ 86, 91, 93, as amended by 1999 Consent Order.)
Not only is the court’s jurisdiction over this matter explicitly set out in the Consent Decree, but also is implicit in the court’s inherent jurisdiction over its decrees. See Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir.1994); Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir.1985) (“Consent decrees are subject to continuing supervision and enforcement by the court.”). The court, thus, finds that it acts within its jurisdiction in ruling on the present motion to terminate the Consent Decree.
III. BACKGROUND
The Consent Decree, filed in June 1991, is the product of extensive negotiations and bargaining which occurred between the parties during the weeks preceding the scheduled trial date in this case. (Consent Decree (Doc. No. 235).) In December 1991, after independent consideration, the court approved the Consent Decree, finding that it was fair, adequate and reasonable. (Order approving Consent Decree (Doc. No. 252).)
The Consent Decree contemplated that the parties initially would evaluate DHR’s child welfare system to determine its resources, capabilities and needs. Thereafter, the Consent Decree provided that DHR would develop an “Implementation Plan” through which DHR would incorporate into its child welfare system the goals and principles of the Consent Decree within specified timetables. (Consent Decree ¶¶ 64-68 (Doc. No. 235).) An Implementation Plan ultimately was approved by the court on November 1, 1993. (Order approving Implementation Plan (Doc. No. 265).)
Due to the extent of reforms necessary to implement the Consent Decree, the Implementation Plan called for the phased-in “conversion” of Alabama’s sixty-seven counties. Each year, for seven consecutive years, specified counties were to be “converted” until all counties were functioning in compliance with the Consent Decree. The Implementation Plan was to be completed by October 1999, at which time the Consent Decree provided that Defendant could move for termination upon a showing of DHR’s substantial compliance, both present and future, with the terms of the Consent Decree and the Implementation Plan. {See Consent Decree ¶ 93 (footnote omitted) (Doc. No. 235).)
The Consent Decree also mandated the appointment of an independent court monitor who would serve as the court’s agent and oversee and assist in the implementation process. (Id. ¶¶ 75-82.) On March 17, 1993, by agreement of the parties, the court appointed Dr. Ivor D. Groves, Ph.D., as the monitor in this lawsuit. (Doc. No. 260.) The court’s five-page “order appointing monitor” sets out the monitor’s roles and responsibilities which include assessing DHR’s compliance with the Consent Decree and Implementation Plan, apprizing the court and the parties of DHR’s progress, and mediating disputes between the parties. {Id.) Among other provisions, the order also dictates that the court monitor shall have access to all needed information, establishes guidelines for compensating the court monitor, authorizes the court monitor to hire staff, and permits the court monitor to engage in ex parte communications with the parties and the court. (Id.; see also Doc. No. 259, Ex. 2 (Contract at 7)0
Dr. Groves has remained the court monitor for the duration of this case. He has been instrumental in the conversion process of each of Alabama’s sixty-seven counties and has greatly assisted the court and the parties.
With the court monitor’s assistance, the parties began the implementation of the Consent Decree. In August 1996, pursuant to the authority bestowed upon him in the Consent Decree, the court monitor determined that the first county to be in compliance with the requirements of the Consent Decree was Shelby County. (Ct. Monitor Nov. 2004 Report at 6.) The conversion process for each county generally is described by the court monitor in his November 2004 Report from which the court quotes:
In order to be determined converted to practice that conforms to the requirements of the Consent Decree, each county has been required to demonstrate that child welfare services are being consistently provided in accordance with the operating principles of the decree .... A county-by-county review process was followed that included the following steps. The first step was that either the monitor or the Family Services Partnership’s Office of Quality Assurance conducted a review of a sample of randomly chosen children and families and a series of focus groups were eon-ducted with key stakeholders such as family court judges, service providers, guardian ad litems, caseworkers, quality assurance committee members, and DHR county management. Upon reaching an acceptable level of performance, based on the child in-depth reviews, quantitative performance, and stakeholder input, the second step was to “release” the county to present the overall set of data and community partner perspectives that support an assertion of conversion of practice to compliance with the principles of the Consent Decree. Following the assertion presentation attended by both the monitor and the plaintiffs counsel, an independent review by the plaintiffs attorneys was conducted in order to further assess compliance with practice expectations. Lastly, the monitor reviewed all available information gained through these review activities and made a final determination of a county’s compliance status. This compliance determination process has been utilized for all counties.
(Ct. Monitor Nov. 2004 Report at 7 (see infra footnote 7).) The court monitor explains, in general terms, that he declares a county converted “when 85% of child status and system performance ratings are acceptable during an on-site compliance [review].” (Id. at 25.)
Although between August 1996 and the end of 1998, the court monitor determined that fourteen counties, in addition to Shelby County, had “converted” their child welfare practices in accordance with the terms of the Consent Decree, it became clear that DHR would not be able to meet the October 1999 deadline set out in the Consent Decree. The parties, however, averted litigation and negotiated an agreed-upon two-year extension of the conversion deadline to October 1, 2002. Based on the agreement of the parties, the court entered the detailed 1999 Consent Order. (1999 Consent Order (Doc. No. 511); Ct. Monitor Nov. 2004 Report at 5.) Its provisions specified that the final county would be converted by October 1, 2001, and that, during the ensuing year (until October 1, 2002), DHR would demonstrate that the counties were sustaining their conversions. (Doc. No. 511, Ex. 2 (“Strategic Conversion Plan” at 9); Ct. Monitor Nov. 2004 Report at 29.) Contemplating full compliance by October 1, 2002, the parties modified the termination provision of the Consent Decree to provide as follows:
On or after October 1, 2002, the defendant may move for termination of this Decree upon a showing that DHR is in substantial compliance with the requirements of the Decree and of the Implementation Plan and that DHR will remain in substantial compliance after termination of the injunction in this case.
(1999 Consent Order ¶ 10.)
Also, during this time frame, to assist in the implementation of the Consent Decree, the court entered two orders, one governing caseload standards and the other governing licensing of staff. (Doc. Nos. 452, 538.) These orders were submitted as proposed joint orders, like the majority of orders entered in this case. The overall objective of the 1998 order on caseload standards is to restrict the number of cases assigned to social workers so that caseloads remain manageable. Also, in a separate order, the court directed Defendant to establish a policy governing licensing requirements for new social workers as a way to help ensure that DHR recruits the quality workers needed to implement the Consent Decree. (Doc. No. 538.) In December 1999, DHR finalized the latter policy, and the court approved it on January 1, 2000. (Id.) The policy, in sum and substance, created a new entry-level classification for social workers and provided that DHR would only hire applicants for this classification who had earned a Bachelor of Social Work. (Id.) The policy also implemented incentives for existing staff to obtain professional social work degrees, such as providing educational leave with pay. (Id.)
Notwithstanding the progress DHR was making as to county conversion and the efforts of DHR to improve caseload management and the quality of its workforce, the October 2002 goal for full conversion ultimately proved unrealizable. As of October 2002, seventeen counties still had not completed the conversion process and had not attained a favorable declaration of compliance from the court monitor. At a status conference held by the court on October 29, 2002, it was acknowledged that, although Defendant had “made significant progress in implementing the Consent Decree” and had for the preceding “two years demonstrated good faith in his diligent efforts to comply with the Orders of this Court,” implementation of the system of care in all counties was not complete. (Mem. of Understanding, entered Dec. 5, 2002 (Doc. No. 650); see also Doc. No. 645 (minutes from status conference).) At the status conference, the court monitor stated that he anticipated that it would take an additional six to nine months for the remaining counties to attain compliance with the Consent Decree and that, thereafter, for one year, a monitoring process would commence for the purpose of assessing DHR’s ability to remain in compliance. (Doc. No. 645.)
After this status conference, the parties filed a Memorandum of Understanding, cited above. Therein, a new deadline was not set for the conversion of all counties; instead, the parties agreed that Defendant would “continue his diligent efforts to comply with orders of this Court in a timely manner” and that the parties would work toward achieving substantial compliance as quickly as possible. (Mem. of Understanding, entered Dec. 5, 2002 (Doc. No. 650).)
Since December 2002, the court has held several status conferences to resolve disputed issues and to assess the progress being made. (See, e.g., Doc. No. 663 (minutes from May 1, 2003 status conference); Doc. No. 670 (order setting June 12, 2003 status conference); Doc. No. 681 (minutes from August 26, 2003 hearing); Doc. No. 692 (minutes from Feb. 3, 2004 status conference).) At the request of the parties, the court also entered an order on November 5, 2003, to assist in the final phases of the conversion process. The order, among others things, dictated that, “[i]n connection with DHR’s sustainability reviews of converted counties, the Defendant will develop and implement a report card or similar mechanism for publicly asserting and rating the quality of each county’s practice.” (Order (Doc. No. 687).) As further agreed by the parties, the order also streamlined the process for the conversion of the remaining counties. The order set deadlines for Defendant, Plaintiffs and the court monitor so that, once a county asserted that it was operating within the parameters of the Consent Decree, the parties would receive written notification from the court monitor within forty-five days as to whether the county had attained the goal of conversion. (Id.)
In October 2004, with only four counties remaining for conversion approval by the court monitor, the court entered an order setting a status conference for December 9, 2004. The court directed that counsel for Plaintiffs, counsel for Defendant and the court monitor be present. In the same order, the court ordered the court monitor to file a status report concerning Defendant’s “compliance with the terms of the Consent Decree.” (Doc. No. 711 at 1.) The court indicated that the court monitor could make any recommendations he deemed appropriate. (Id.) Furthermore, the court set a deadline by which counsel for Plaintiffs and Defendant were to file briefs, setting forth their respective positions as to whether Defendant had met his burden of demonstrating substantial compliance with the requirements of the Consent Decree. (Id. at 1-2.) The court also invited counsel to include in their briefs any comments concerning the court monitor’s report. (Id. at 2.)
Complying with the court’s order, the court monitor submitted a 61-page report, titled “Final Report on Implementation of the R.C. vs. WaJley Consent Decree,” dated November 2004 (“Ct. Monitor Nov. 2004 Report”). The court monitor’s ultimate recommendations are contained on pages 60 and 61 of said Report where the court monitor states as follows:
The monitor does not find that DHR has fully fulfilled the promise that was shown in the exemplary performance demonstrated by the many counties and, particularly, the early counties that were determined “converted.” These performance levels demonstrated virtually 100% compliance with the Decree and the best child welfare practice in the country.
1. The monitor does find, however, that the current performance levels are adequate and recommends that the court find that DHR is in substantial compliance with the Consent Decree.
2. It is recommended that the independent monitoring of the Consent Decree be terminated.
3. It is recommended that the court require that DHR produce at least two performance reports over the next 12 months to be submitted to the court that contain facts addressing the same areas of performance as the monitor’s report. The reports should also include the county ratings ordered by the court. The reports should demonstrate that resources are being maintained, that performance improvements are continuing to be made, and that ongoing protective supervision and family engagement are being strengthened.
(Id. at 60-61.)
In response to the court monitor’s November 2004 Report, Plaintiffs filed a brief, presenting, through argument and expert affidavit testimony, their position that the information in the court monitor’s November 2004 Report demonstrates substantial “non-compliance.” (Doc. No. 717.) Defendant simultaneously filed the instant “motion for order terminating consent decree and dismissing case,” invoking the termination clause of the Consent Decree. (Doc. Nos. 714-715.) Therein, Defendant asserts that DHR is “in substantial compliance with the requirements of the Consent Decree and of the Implementation Plan and is likely to remain in substantial compliance.” (Id. at 1, ¶2.) As grounds, Defendant relies primarily on the court monitor’s November 2004 Report and the recommendations therein, arguing that DHR has implemented the system of care in all sixty-seven counties in the State and has formulated a sustainability plan “to assure compliance with the principles of the Consent Decree in the future.” (Id. at 2.) Defendant attached the sustainability plan as an exhibit to his motion. (Ex. to Doe. No. 714.)
The sustainability plan to which Defendant refers is titled “Child Welfare Strategic Plan” (“Strategic Plan”). DHR implemented the Strategic Plan in May 2004 and updated it in September 2004. (Id.) Given Defendant’s reliance on the recent formulation of this Strategic Plan and the court’s recognition that the Strategic Plan is an indicator of DHR’s good faith commitment to conforming child welfare practices to the goals and principles of the Consent Decree, more discussion as to this Plan is warranted.
The Strategic Plan’s prologue states, in part, that DHR desires “to constantly strive for even better performance.... To that end, DHR presents an organizational plan for post-R.C. [practice].” (Id.) The multifaceted functions of the Strategic Plan are outlined in the court monitor’s November 2004 Report at pages 54 through 58, and, as stated, the entire plan is attached as an exhibit to document number 714. (Id. at 54-58; Ex. to Doc. No. 714.) The Strategic Plan addresses issues relating to: staffing and caseload management; recruitment and retention of qualified staff and ongoing professional development initiatives, including a reconfigured “child welfare consultation model”; strategies to improve permanency for children in out-of-home care; quality assurance; information systems development; and finance.
Regarding staffing and caseload management, DHR has established a “staffing committee” which meets “regularly” for the primary purpose of monitoring staff-to-caseload ratios. (Ct. Monitor Nov. 2004 Report at 55.) The staffing committee reviews county directors’ requests for additional personnel and incorporates county consultant updates regarding county staffing needs. Also, in order to recruit and retain qualified and licensed social workers and to comply with the court’s order on licensing standards, (see Doc. No. 538), DHR developed a Staff Development Office in 2001. (Ct. Monitor Nov. 2004 Report at 55.)
In the area of professional development, the Strategic Plan sets outs the various training programs which DHR offers for its social workers, many through national resource centers. (Id. at 56-57.) Another “major” initiative of the Strategic Plan related to professional development is the refinement of DHR’s child welfare consultation model. (Id. at 56.) The goals of the consultation model are to employ full-time consultants who can assess counties’ needs and quality of practice based on onsite evaluation and available data and provide follow-up actions. (Id.)
The Strategic Plan also describes specific steps to be taken by DHR at the state and county level to improve the attainment of permanency for children receiving foster care services. (Id. at 57.) Also, addressed are strategies to improve DHR’s ability to meet the needs of severely emotionally disturbed (“SED”) children, including the establishment of a statewide database to track the status of SED children and additional training for staff regarding intervention strategies and techniques to address the needs of these children. (Id.) Finally, the Strategic Plan emphasizes that DHR is committed to continuing, and even increasing, quality assurance mechanisms by which DHR evaluates each county’s child welfare practice. (Id. at 58.)
After reviewing the pleadings submitted by Plaintiffs and Defendant and the court monitor’s November 2004 Report, on December 9, 2004, the court held a status conference in chambers at which time counsel for Plaintiffs and Defendant and the Commissioner of DHR articulated their positions as to whether DHR had attained the goal of substantial compliance so that federal oversight can end.
After careful consideration of the issues and arguments presented by the parties and the court monitor at the status conference, the court entered an order on December 13, 2004. (Doc. No. 725.) Although recognizing the “monumental strides” and “great success” in this case, the court declined to terminate the Consent Decree at that time and held Defendant’s motion under advisement. The court found that, at a minimum, four deficiencies outlined in the court monitor’s November 2004 Report were barriers to a finding of substantial compliance. (Id. at 2.)
The court summarized the four “problem areas” as follows: (1) Defendant has not implemented into sanctioned DHR policy the 1998 court-ordered caseload standards. (See Ct. Monitor Nov. 2004 Report at 55 (recommending that “DHR maintain the 1998 Court Order of Caseloads and Staffing by implementing policy measures to ensure current staff-to-caseload ratios are continued”)); (2) Defendant never has complied with the court’s November 4, 2003 Order which directed DHR to establish a mechanism to provide regular “report cards” describing the status of each county’s performance with respect to the Consent Decree. (See Nov. 4, 2003 Order which provides: “In connection with DHR’s sustainability reviews of converted counties, the Defendant will develop and implement a report card or similar mechanism for publicly asserting and rating the quality of each county’s practice.”); (3) Despite significant progress, Jefferson County which has five regions and the largest percentage of children in DHR’s care manifests certain weaknesses which impede its ability to sustain substantial compliance (see, e.g., Doc. No. 717 at 11-13); and (4) the court monitor has not yet declared Baldwin County in compliance with the principles of the Consent Decree. (Ct. Dec. 13, 2004 Order (Doc. No. 725).)
Consistent with the parties’ prior practices, the parties agreed to meet and confer for the purpose of reaching a mutually satisfactory solution to each of the four areas above. (Id.) The court gave the parties a deadline of January 21, 2005, to confer jointly and formulate a detailed written plan focused on strategies to rectify the above deficiencies and to file a joint statement. Upon the request of the parties, the court extended that deadline to February 4, 2005. (Doc. No. 731.)
On February 4, 2005, unable to reach a joint resolution, Plaintiffs and Defendant filed separate reports with the court. Defendant noted that the parties and the court monitor had five discussions, in person and by telephone, including one meeting with Governor Bob Riley, for the purposes of resolving the issues outlined in the court’s December 13 Order and reaching an agreement as to how to return Alabama’s child welfare system to the State. (Doc. No. 735 at 1.)
In his report to the court, Defendant communicated the following: (1) that DHR had promulgated an “Emergency Rule,” ultimately to be included as a permanent rule in DHR’s Administrative Code, codifying the 1998 court-ordered caseload standards at Section 660-5-53 of the Alabama Administrative Code (see Ex. A to Doc. No. 735); (2) that, finally, in compliance with the November 2003 court order, DHR had prepared a “report card” rating system to be published twice a year describing the status of each county’s performance with respect to the Consent Decree (see Ex. B to Doc. No. 735); and (3) that DHR had developed a written plan to address performance issues in Jefferson County. (See Ex. C to Doc. No. 735.)
At the time the parties submitted their separate reports to the court (Doc. Nos. 735-36), the court monitor had not yet declared Baldwin County a “converted” county. On March 11, 2005, however, the court monitor declared that Baldwin County — the final and sixty-seventh county — “is consistently practicing in accordance with the Consent Decree and is declared a converted county.” (See Ct. Ex. 1, attached hereto.)
IV. DISCUSSION
The Consent Decree resulted from the protracted, good-faith bargaining between Plaintiffs and Defendant. It represents the settlement of this litigation between the parties. Implementation of the Consent Decree has been supervised extensively by the court and the court monitor over the past decade. The court has had continuing involvement, through regular communications with the court monitor, status conferences and hearings. With the exception of a brief period in the mid-1990s in which DHR improvidently challenged the validity of the Consent Decree, see, e.g., R.C. v. Nachman, 969 F.Supp. 682 (M.D.Ala.1997), aff'd, 145 F.3d 363 (11th Cir.1998), to the credit of the parties, these proceedings have been primarily conciliatory, as opposed to adversarial. This case has evolved from one of contention to one of mediation with both sides exerting extensive and commendable efforts to resolve all disputes in the best interest of the children involved.
With that said, the proceedings have now turned adversarial with Defendant invoking the termination clause of the Consent Decree and Plaintiffs opposing termination. The termination provision provides as follows:
On or after October 1, 2002, the defendant may move for termination of this Decree upon a showing that DHR is in substantial compliance with the requirements of the Decree and of the Implementation Plan and that DHR will remain in substantial compliance after termination of the injunction in this case.
(See Consent Decree ¶ 93 (Doc. No. 235), as amended by ¶ 10 of 1999 Consent Order (Doc. No. 511).) By the Consent Decree’s express terms, Defendant bears the burden of establishing “substantial compliance.” (Id.)
Defendant contends that DHR is in substantial compliance with the provisions of the Consent Decree and the Implementation Plan, that “it has the capacity to sustain compliance,” (Doc. No. 735 at 3), and that it is “likely to remain in substantial compliance.” (Doc. No. 714 at 1.) Defendant relies primarily on the court monitor’s recent assertion that “current performance levels are adequate” and the court monitor’s recommendation that “the court find that DHR is in substantial compliance with the Consent Decree.” (Ct. Monitor Nov. 2004 Report at 60.) Defendant also tenders that he has resolved the “four problem areas” which the court addressed at the December 9, 2004 status conference and that, therefore, the court should “terminate the Consent Decree in accordance with its terms.” (Doc. No. 735 at 1-3.)
As to present compliance, Defendant asserts that “DHR has established and implemented the required System of Care in all sixty-seven counties of Alabama pursuant to an Implementation Plan developed by DHR and approved by the court.” (Doc. No. 715 at 5.) Furthermore, with no citations to the record and in conclusory fashion, Defendant sets forth a bulleted list which he says represents “indicators of DHR’s operation of the System of Care with the aim of achieving the goals of the Decree and in conformity with the ‘principles’ or ‘standards’ of the Decree[.]” (Id. at 5-6.)
As to the requirement that Defendant demonstrate that DHR will remain in substantial compliance, Defendant asserts that there is an established record of DHR’s good faith compliance with the provisions of the Consent Decree and the court’s orders. Defendant contends that DHR’s record of good faith is further buttressed by DHR’s diligent and cooperative work with Plaintiffs and the court monitor. To the extent that there have been “technical” violations with the “strict terms” of the Consent Decree, such as the failure of DHR to meet the October 2002 deadline, Defendant asserts that those violations were “unintentional” and not “systematic.” (Id. at 7-8.)
Relying also on DHR’s “institutionalization of procedures,” Defendant emphasizes that DHR has incorporated into its “operating policies” the standards set forth in the Consent Decree and other directives, such as the court’s order on caseload standards. (Id. at 9.) Defendant states that DHR has adopted a detailed, written Child Welfare Strategic Plan to ensure that the advances made to date remain in place and that improvements continue. Finally, Defendant asserts that DHR will publish public reports demonstrating DHR’s performance of the Consent Decree’s system of care. (Id. at 9-10.)
Plaintiffs do not undermine the “strides the State has made toward fulfilling the vision articulated in the R.C. Consent Decree.” (Doc. No. 736 at 2.) Plaintiffs, though, contend that Defendant has not met his burden of demonstrating sustained substantial compliance by DHR. Plaintiffs have submitted an affidavit from George E. Taylor, M.A., a proposed expert, who reviewed various documents in the case, including the court monitor’s November 2004 Report. Mr. Taylor does not introduce new data, but, rather, analyzes the court monitor’s November 2004 Report and asserts that the evidence therein is incongruent with the court monitor’s final recommendation of substantial compliance. Mr. Taylor, in sum and substance, complains that the court monitor’s report is conclusory, is lacking current data, and that the data demonstrates DHR’s noncompliance and regression, not substantial compliance. (Taylor Aff., Ex. 1 to Doc. No. 717.)
A. Governing Law for Termination of Consent Decrees
“‘A consent decree is a strange hybrid in the law.’ ” Vanguards of Cleveland, 23 F.3d at 1017 (quoting Brown v. Neeb, 644 F.2d 551, 560 (6th Cir.1981)). It is both “a voluntary settlement agreement which could be fully effective without judicial intervention” and “a final judicial order ... placing] the power and prestige of the court behind the compromise struck by the parties.” Id. (quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983)). A consent decree, therefore, is a “ ‘settlement agreement subject to continued judicial policing.’ ” Id. “Once approved, the prospective provisions of the consent decree operate as an injunction.” Id. (citing Plummer v. Chemical Bank, 668 F.2d 654, 659 (2d Cir.1982)).
The decision to terminate jurisdiction over a consent decree rests in the district court’s discretion. See Johnson v. Florida, 348 F.3d 1334, 1341, 1349 (11th Cir.2003); McDonald v. Carnahan, 109 F.3d 1319, 1321 (8th Cir.1997). The court, though, when proclaiming its decision, should “make sufficiently detailed findings of fact and conclusions of law under Rule 52(a), Fed.R.Civ.P., to advise the parties of the factual basis for its decision.” Bradley v. Milliken, 772 F.2d 266, 272 (6th Cir.1985); see also Bd. of Educ. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 246, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (“[i]f ... a [consent] decree is to be terminated or dissolved, respondents ... are entitled to a [precise statement] from the court”).
To terminate a consent decree, “[t]he party seeking termination of the decree must show that the basic purposes of the decree have been fully achieved and that there is no significant likelihood of recurring violations of federal law once the decree has been lifted.” Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1350 (11th Cir.1999) (citing Dowell, 498 U.S. at 246-250, 111 S.Ct. 630 (1991)); United States v. City of Miami, 2 F.3d 1497, 1505 (11th Cir.1993) (The court must “begin by determining the basic purpose of the decree” and whether its purpose has been “ ‘fully achieved.’ ”). Consideration of the specific terms of the Consent Decree then is paramount.
Factors which may be relevant to whether the purposes have been fully achieved are: (1) whether the defendant has complied in good faith with the terms of the consent decree since it was entered; (2) any specific terms providing for continued supervision and jurisdiction over the consent decree; (3) the length of time the consent decree has been in effect; and (4) whether the consent decree has eliminated the constitutional deficiencies “to the extent practicable.” Dowell, 498 U.S. at 249-50, 111 S.Ct. 630; Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir.1998); Cody v. Hillard, 139 F.3d 1197, 1199 (8th Cir.1998); City of Miami, 2 F.3d at 1505-06; Heath v. DeCourcy, 992 F.2d 630, 633 (6th Cir.1993) (citing Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 & Youngblood v. Dalzell, 925 F.2d 954, 960-61 (6th Cir.1991)). Notwithstanding this list of factors, though, a court may not terminate its jurisdiction until it finds both compliance with the terms of the consent decree and achievement of the decree’s objectives. See Gonzales, 151 F.3d at 531.
Here, the Consent Decree provides that “substantial compliance” is the governing standard for termination. Under the express terms of the Consent Decree, a dual “substantial compliance” inquiry is mandated: (1) Has Defendant demonstrated that DHR is substantially complying with the requirements of the Consent Decree and the Implementation Plan?; and (2) has Defendant demonstrated that DHR will remain in substantial compliance therewith? (Consent Decree ¶ 93, as amended by 1999 Consent Order.) To determine whether Defendant has met his burden of demonstrating “substantial compliance,” the court must ascertain the meaning of “substantial compliance.”
Plaintiffs and Defendant, who negotiated the terms of the Consent Decree, agree as to the general principles of law surrounding the definition of “substantial compliance.” “Substantial Compliance” is oft defined by what it is not. “Substantial Compliance” is not subject to rigid application, nor “susceptible of a mathematically precise definition.” Joseph A. by Wolfe v. N.M Dep’t of Human Servs., 69 F.3d 1081, 1085 (10th Cir.1995). Substantial compliance is not “exact compliance” or perfection. Id.; see Wyatt v. Rogers, 985 F.Supp. 1356, 1388 (M.D.Ala.1997) (observing that substantial compliance is something less than 100% compliance; “it would be impractical, and thus unreasonable, to expect 100% compliance 100% of the time” with respect to the complex requirements of a consent decree). Rather, whether the goal of substantial compliance has been attained requires a case-specific analysis. See Fortin v. Comm’r of the Dep’t of Mass. Pub. Welfare, 692 F.2d 790, 795 (1st Cir.1982) (“[N]o particular percentage of compliance can be a safe-harbor figure, transferable from one context to another. Like reasonableness, substantiality must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest.”).
In Joseph A. by Wolfe, relied upon by both Plaintiffs and Defendant, the Tenth Circuit set forth some general guidelines as to what “substantial compliance” entails in the context of consent decrees. In that case, as here, the consent decree provided that termination of the decree was contingent upon a showing by the defendant of substantial compliance with its terms. See Joseph A. by Wolfe, 69 F.3d at 1083. Because the contract terms imposed the requirement of “substantial compliance,” the Tenth Circuit applied the contract law definition. See id. at 1085; see also Reynolds v. McInnes, 338 F.3d 1201, 1211 (11th Cir.2003) (holding that court must “apply the same rules that govern contract interpretation when [it] interprets] a consent decree, because a consent decree is essentially a form of contract”). The court explained:
[Substantial compliance is: “simply a doctrine to assist the court in determining whether conduct should, in reality, be considered the equivalent of compliance under the contract.” ... Judge Cardozo, in the seminal substantial compliance case of Jacob & Youngs, Inc. v. Kent, concluded that performance of a contract will not be considered in substantial compliance of the contract if the deviation from the contract requirements ... ‘in any real substantial measure ... frustrate^] the purpose of the contract.’ 230 N.Y. 239, 129 N.E. 889, 891 (1921). Thus, the touchstone of the substantial compliance inquiry is whether Defendants frustrated the purpose of the consent decree-i.e. its essential requirements.
Joseph A. by Wolfe, 69 F.3d at 1085-86.
In Joseph A. by Wolfe, however, the Tenth Circuit held that it could not determine whether substantial compliance had been attained because the district court had not complied with Rule 52(a) of the Federal Rules of Civil Procedure, by “failfing] to make the specific and clear findings required” by the rule. Id. at 1089. Vacating the judgment and remanding, the Tenth Circuit dictated that
the district court should (1) apply the substantial compliance standard set forth in [its] opinion — i.e., consider whether Defendants satisfied the essential purposes of the decree ...; (2) outline its reasoning why Defendants satisfied (or did not satisfy) the essential purposes of the decree — i.e. justify its ultimate legal conclusions ...; (3) explain the methodology employed to reach its factual findings ...; and (4) specify the subsidiary factual findings and reasoning necessary to support its judgment as to Defendants’ compliance with each of the overall goals and enumerated criteria in the decree.
In light of the foregoing, the court initially must examine the express terms of the Consent Decree and Implementation Plan and ascertain their core purposes/requirements. Next, applying the above principles of law, the court must determine whether Defendant has satisfied his burden of demonstrating that DHR is substantially complying with those requirements and will remain in substantial compliance therewith.
B. Terms of the Consent Decree
Compliance with the Consent Decree “means satisfying the requirements set out in Paragraph 31 of the Consent Decree.” (See 1999 Consent Order at 2 n. 1.) Paragraph 31 of the Consent Decree contains four subsections, (a) — (d). Defendant and Plaintiffs focus on subsections (a) and (b), and, thus, the court confines its analysis to the same.
Subsections (a) and (b) of Paragraph 31 provide as follows:
31. Defendant shall ensure that DHR, pursuant to the timetable in the Implementation Plan:
a. Establishes a “system of care” for class members and their families;
b. Operates the “system of care” with the aim of achieving the goals described in Section VII below and in conformity with the “principles” or “standards” set forth in Section VIII below.
(Consent Decree at 13, § VII, ¶ 31 (Doc. No. 235).)
“The goals of the ‘system of care,’ ” set out in Section VII, “shall be to”:
a. Protect class members from abuse and neglect; and
b. Enable class members to:
(i). Live with their families; and when that cannot be achieved through the provision of services, to live near their home;
(ii). Achieve stability and permanency in their living situation;
(iii). Achieve success in school; and
(iv). Become stable, gainfully employed adults.
(Id. at 14, § VII, ¶ 33.) As stated in a footnote in Section VII, “[t]he goals are meant, among other things, to explain the ‘needs’ to which services are to be addressed. The object of services is to attain these goals.” (Id. at 14, § VII, ¶ 33 n. 19.) However, “[t]he statement of goals is not meant to guarantee attainment of the goals for every class member. Instead, DHR is obliged to provide services needed to enable class members to attain the goals.” (Id.)
Section VIII sets forth thirty “operating principles” or “standards.” (Id. at 15-32.) The court has distilled the goals and operating principles into five broad categories: (1) the prevention of out-of-home placements and the advancement of family unification, but only when at-home placement provides an environment where the child is safe from imminent and serious harm (core purpose one); (2) the delivery of comprehensive services, in a coordinated and therapeutic manner, by competent staff with appropriate caseloads, to class members and families in home-based and community-based settings, devised pursuant to individualized service plans (“ISPs”), for the purposes of facilitating home placement, satisfying the unique physical, emotional, social, educational and other needs of class members, and promoting smooth transitions for class members when they “age out” of the system (core purpose two); (3) active participation by the child, parent and foster parent in the planning and delivery of services, to include informed involvement so that the child, parent and foster parent have full understanding of these services and their rights and options (core purpose three); (4) child safety, encompassing the prevention of sexual abuse and neglect and the timely intervention and investigation of class members believed to be victims of sexual abuse and/or neglect (core purpose four); and (5) stability and permanency in the class members’ living situations, including, if in the children’s best interest, that when children are removed from their homes, siblings are placed together and familial relationships are maintained through visitations and other means (core purpose five). (See Consent Decree at 15-32; see also Ct. Monitor Nov. 2004 Report at 3-4.)
C. Analysis of Substantial Compliance
Over a period of almost nine years, the court monitor, working conjunctively with Plaintiffs and Defendant, has systematically evaluated each of Alabama’s sixty-seven counties to determine whether each county is operating in accordance with the goals and principles of the Consent Decree, described above. In August 1996, Shelby County was the first county to achieve conversion, and, finally, almost nine years later, in March 2005, the last county, Baldwin County, joined the “converted” ranks. The court monitor now has declared every county “converted,” meaning that, at the time of conversion, the counties were “consistently practicing in accordance with the Consent Decree.” (See, e.g., Ct. Ex. 1, Ct. Monitor Letter, re: Baldwin County.)
The conversion of all the counties, over this lengthy and laborious nine-year process, is a great accomplishment and is an appropriate starting point for determining whether Defendant has demonstrated that the core purposes of the Consent Decree and the Implementation Plan have been achieved. The credit for this achievement appropriately is bestowed upon the parties. Through the continuing efforts of Plaintiffs — their persistence in following up on compliance with the Consent Decree-much progress has been made, though the court recognizes not to Plaintiffs’ complete satisfaction. Also, Defendant has worked painstakingly, expeditiously and cooperatively with the court monitor and Plaintiffs, particularly in the last few years, to ensure that every county implemented the system of care outlined in the Consent Decree. (See, e.g., id. at 29 (observing that DHR has “demonstrated a good faith effort to comply with the court’s order to convert all counties before R.C. is concluded[;] for example, DHR has had 18 counties declared converted since October 2002”).) The court commends Plaintiffs and Defendant for their perseverance over the years in negotiating the terms of, and in striving for compliance with, the Consent Decree.
The court credits and adopts the court monitor’s findings that, on their respective dates of conversion, the counties were “consistently practicing in accordance with the Consent Decree.” (Ct. Ex. 1, Ct. Monitor Letter, re: Baldwin County; see also Ct. Monitor Nov. 2004 Report, Appendix A (Ct. Monitor Letter, re: Shelby County).) Defendant relies heavily on this great accomplishment, and appropriately so, and there is no challenge by Plaintiffs to the court monitor’s conclusions that, on their dates of conversion, Alabama’s sixty-seven counties had satisfied the requirements for compliance with the Consent Decree. As stated, the fact that the court monitor has declared each and every county “converted” is monumental, as paragraph 31 of the Consent Decree anticipated a county-by-county conversion, pursuant to staggered deadlines set out in the Implementation Plan. With that said, however,, the court finds that it cannot terminate the Consent Decree on that basis alone.
The Consent Decree and the Implementation Plan contemplate a continuing compliance by counties beyond their individual dates of conversion. After the conversion of all sixty-seven counties, the Consent Decree and Implementation Plan set out the expectation that the counties simultaneously would be operating “with the aim of achieving the goals in Section VII ... and in conformity with the ‘principles’ or ‘standards’ set forth in Section VIII[.]” (Consent Decree ¶ 31 & n. 18; see also Ct. Monitor Nov. 2004 Report at 2-3 (ultimate goal of the county-by-county system of reform “has been to change the practice of child welfare in Alabama in each of the 67 counties so that a child and family who becomes involved with [Alabama’s] child welfare system as a result of allegations of abuse and neglect or other reason [are] served in accordance with the principles of the system of care”).)
Moreover, as further espoused by the court monitor and not challenged by Defendant, the reason the Implementation Plan set staggered deadlines for county conversion was as follows: (Ct. Monitor Nov. 2004 Report at 6; see also id. at 11 (observing that “the intent of converting a county was to instill capacity within the county to maintain progress gained and not to externally support a county so that it would become compliant with R.C. for a minimal period of time”) (emphasis added).)
Clearly, the expectation expressed in the conversion chapter [of the Implementation Plan] and by the monitor is that as counties achieved a level of practice that was in compliance with the Consent Decree, they would continue to perform at that level[;] then when all 67 counties were converted, DHR would have implemented “the system of care” on a statewide basis.
It is in the area of sustained substantial compliance and, relatedly, future substantial compliance which Plaintiffs challenge. If Defendant cannot demonstrate that, after conversion, counties are sustaining substantial compliance, then Plaintiffs contend that it cannot be found that DHR’s system of care is operating in conformity with the requirements of the Consent Decree or that DHR will remain in substantial compliance. Plaintiffs emphasize that Defendant bears the burden of setting forth evidence that DHR is and will remain in substantial compliance with the Consent Decree (Doc. No. 717 at 2), but assert that the record does not support such findings.
Defendant, on the other hand, emphasizes that the court monitor has “certified” DHR’s substantial compliance. (Doc. No. 714 at 2.) Specifically, in the concluding paragraphs of his November 2004 Report, the court monitor has recommended that the court find that “DHR is in substantial compliance with the Consent Decree.” (Ct. Monitor Nov. 2004 Report at 60.) The court, though, cannot merely adopt the court monitor’s recommendation and fulfill its obligations under the law. The court must ascertain whether the evidence upon which the court monitor relies supports the court monitor’s recommendations. Cf. Joseph A. By Wolfe, 69 F.3d at 1087-89 (holding that district court erred in adopting special master’s findings because there was insufficient factual basis to support the legal conclusions reached by the special master). As set out below, the court has been unable to reconcile the court monitor’s recommendation of “substantial compliance” with the data and other information in the court monitor’s November 2004 Report. Stated differently, Defendant has chosen to rely on the court monitor’s November 2004 Report and the recommendations therein, yet he has failed to connect the data to the court monitor’s ultimate recommendations, and the court has been unable to do so. Defendant, thus, has left the court without the necessary evidentiary foundation to declare that DHR is in substantial compliance and will remain in substantial compliance, as is required for termination of the Consent Decree.
1. The Data in the Court Monitor’s November 2001p Report
The court monitor’s recommendations on pages 60 and 61 of his November 2004 Report emerge after the court monitor’s discussion of various statistical data in other sections of his report. The data arises from two primary sources: (1) sustainability reviews conducted by DHR’s Family Services Partnership’s Office of Quality Assurance (“SQA”) (see Ct. Monitor Nov. 2004 Report at 22, 29-39); and (2) other internal data compiled by SQA for the purpose of “assess[ing] the functioning” of the system of care on a statewide basis. {Id. at 39-52.)
Turning first to the SQA sustainability reviews, the court monitor’s own valuation of these reviews casts doubt on the reliability of the sustainability reviews as an effective tool for measuring whether an individual county, or the system overall, is sustaining substantial compliance. Two variables are particularly problematic. First, the pool of children evaluated for the sustainability studies consisted of only 64 children. (See id. at 30, 34.) As observed by the court monitor,
[a] limitation of these case review data is the small sample sizes used by the Family Services Partnership’s Office of Quality Assurance when conducting on-site reviews. As such, case review findings can be considered “random spot checks” on children who are actively receiving services from the county but statistically may not be fully representative of overall practice in a county. Although each review participant is randomly selected for inclusion in the sustainability reviews, the total number of case reviews completed for each of these sustainability reviews ranged from four to eight.
(Id. at 34.) This court is not the first to discount the weight of statistics derived from a small sample pool. In other contexts, courts have recognized the problem of predicting particular outcomes when the data has been gathered from a sample pool of small size. See Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) (statistics lacked probative weight given small size of pool); Pollis v. New School for Social Research, 132 F.3d 115, 121-123 (2nd Cir.1997) (holding that “discrimination may not be proved by statistics involving so small a [sample] pool”); Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1076 (9th Cir.1986) (“the problem with small labor pools is that slight changes in the data can drastically alter appearances”).
Second, at the time the court monitor issued his November 2004 Report, only fifteen of Alabama’s sixty-seven counties— or roughly 22 percent — had undergone sustainability reviews by the SQA during 2003 and 2004. (Ct. Monitor Nov. 2004 Report at 30.) The limited number of reviews included in the Report also leads the court to question the reliability of the data derived therefrom.
Neither the court monitor nor Defendant has presented any argument or grounds showing that this data is an accurate predictor of substantial compliance. Similarly, neither has discussed why the foregoing limitations pertaining to the small sample pool and incompleteness do not circumscribe the usefulness of the sustainability reviews. In particular, Defendant has not argued the weight which the court should give the data or how the data is relevant to a finding of substantial compliance. In short, there is nothing in the record which demonstrates that the data is an accurate predictor of substantial compliance, given the few number of children included in the reviews and the fact that less than 25 percent of the counties were reviewed during the two-year period; thus, the court is compelled to find that this data is too unreliable, at least in its present form, to sustain Defendant’s burden of demonstrating substantial compliance.
Even if the court considers the statistical results of the sustainability reviews as dispositive of the issue of substantial compliance, it is unclear to the court how the data supports a finding of substantial compliance. On page 35 of his November 2004 Report, the court monitor compiles the data from the sustainability reviews so as to assign each county an “overall system performance rating.” (Id. at 35.) The sustainability reviews, which apparently are similar to the reviews initially performed to ascertain whether a county had attained the goal of conversion (see id. at 29), reveal that only three of the fifteen counties demonstrated an “overall system performance rating” satisfying the 85 percent threshold initially employed by the court monitor to declare a county converted. (See id. at 35; see also id. at 25 (explaining, in general terms, that the court monitor declared a county converted “when 85% of child status and system performance ratings [were] acceptable during an on-site compliance [review]”).) Disturbingly, five of the fifteen counties received ratings of only 25 percent.
Notably, there is no explanation by Defendant or the court monitor as to why these “overall system performance ratings” are not a barrier to a finding of substantial compliance. At the December 9, 2004, status conference, the court monitor essentially conceded that the results of the sustainability reviews did not equate substantial compliance when he stated as follows: “The biggest challenge is how to sustain the level of performance that [DHR] has, in fact ... the capacity to do. And I purposely chose the word ‘capacity’ and not ‘was doing’ because of the last 15 [sustainability] reviews.... The results of those reviews showed that nine of them were, in fact, not maintaining the level of practice that we really need to maintain.” (Transcript from Dec. 9, 2004 status conference at 42 (Doc. No. 730).)
Moreover, also unfavorable to Defendant, are the results of the aggregate findings from the sustainability reviews which reveal that, in fourteen areas denoted as “key system performance indicators,” the percentage of children who received “acceptable” ratings fell below 85 percent in thirteen of the fourteen areas. (Ct. Monitor Nov. 2004 Report at 32-33.) To provide a specific example, of the fifteen counties reviewed, in the categories of “Individualized Service Plan” and “ISP Implementation” (i.e., core purpose two), only 41 percent and 64 percent, respectively, of the children reviewed received an “acceptable” rating. (Id. at 33.) The court monitor also has observed that “the functioning and adequacy” of ISPs are of concern. (See id. at 34.)
With that said, though, the court recognizes that the data is not completely negative. In contrast to the foregoing, in many of the fourteen areas denoted as “child and family status ratings,” a majority of the children received “acceptable ratings.” (Id. at 31.) Reliance on these positive findings as indicators of substantial compliance, however, at the very least, requires an explanation of how the positive findings outweigh the other negative factors. Such an explanation is lacking from the court monitor and Defendant. To the contrary, the court monitor has indicated that a balancing does not weigh in favor of DHR, given his ratings as to the counties’ overa