M.D. v. Abbott (152 F. Supp. 3d 684, 2015)

United States District Court for the Southern District of Texas 2015-12-17

Citations

Full 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.

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”). 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; and Anne Heiligen-stein, Commissioner of DFPS (collectively “Defendants”), in their official capacities. (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: 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 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. 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. 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). 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. 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). 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, 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 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; '

(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 affirmative 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. 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.” Cnty. 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 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 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 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.” 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 Comptroller 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 conducted 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 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 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. 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. (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. (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. (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