Full opinion text
MEMORANDUM JOSEPH C. HOWARD, District Judge. Pending before the court is this civil rights class action brought by foster children in the care and custody of the Baltimore City Department of Social Services (“BCDSS”). Named as defendants are Ruth Massinga, Secretary of Maryland’s Department of Human Resources, BCDSS, and various foster-care officials. These children allege that the defendants’ administration of the foster care system in Baltimore City violates their rights under federal statutory law, Titles IV-E and IV-B of the Social Security Act, and the Fourteenth Amendment to the United States Constitution. The class seeks equitable relief in the form of an affirmative injunction that would require reforms of the foster care system. In addition to these equitable claims, some named class representatives seek monetary damages for harms allegedly suffered while in the defendants’ care. The immediate matter under consideration is whether a consent decree proposed by the parties as settlement of the equitable claims is fair and adequate and thereby merits the court’s approval. After the proposed decree was submitted on April 26, 1988, the court met with the parties, directed that notice be provided the class members and interested persons, held a hearing at which those provided notice were invited to present objections or comments, and met with foster care workers to learn their views of the decree. After completion of these measures and careful study of the decree, the court approves the decree for the reasons provided below. I. The history of this action is long and arduous. Since the complaint was filed in December, 1984, the court has issued over seventy orders and held a dozen status conferences with the parties. The docket, now seventeen pages long, lists over two hundred entries. On January 2, 1987, the court granted a motion to intervene that had been filed the previous November by two additional proposed class representatives. That same day the court certified a class composed of all children who are, have been, or will be placed in foster homes by the BCDSS and are or will be placed in the custody of the BCDSS through voluntary placement or court order. On February 6, after conducting extensive discovery, including a random sampling of BCDSS foster care case records, the plaintiffs filed a motion for a preliminary injunction. A hearing on the motion was held over a period of two weeks commencing on April 2, 1987. Some 91 separate items of evidence were introduced, and the court heard from 12 witnesses. Among the items of evidence were the preliminary results of plaintiffs’ random sampling of case records, contained in several thick looseleaf binders. The witnesses included an expert on the research methodology used in conducting the plaintiffs’ study. The court also heard the testimony of relatives and experts regarding the cases of sixteen children who had been severely neglected and abused while in defendants’ care and custody. The court found overwhelming evidence of serious systematic deficiencies in Baltimore’s foster care program such that foster children would suffer irreparable harm if immediate injunctive relief were not granted and, in a Memorandum and Order issued July 27,1987, granted plaintiffs’ motion for a preliminary injunction. Specifically, among its findings, the court determined that there was a lack of satisfactory foster homes; that the defendants failed to remove children from homes where physical and emotional abuse and neglect were threatened; that homes were licensed where foster parents were unable to care properly for the children; that “exceptions” were granted allowing clearly inadequate homes to remain open; that the system for providing medical care to foster children was inadequate to ensure continuous and informed treatment; and that the defendants had substantially failed to undertake the improvements recommended by an internal study produced by the “Harris Task Force.” As preliminary injunctive relief, the defendants were ordered to (1) review the status of each foster home where there had been a report of maltreatment; (2) visit each child in a BCDSS foster home on a monthly basis; (3) visit each child who had been the subject of a report of maltreatment on a weekly basis; (4) assign sufficient staff and resources to ensure appropriate medical care was rendered and medical histories were obtained and provided to those rendering medical care to each child; and (5) provide a written copy of any complaint of maltreatment of a foster child to the juvenile court and the child’s attorney. On February 1, 1988, the Fourth Circuit affirmed this court’s decision to grant plaintiffs a preliminary injunction. See L.J. By and Through Darr v. Massinga, 838 F.2d 118 (4th Cir.1988). Thereafter, the parties engaged in extensive settlement negotiations. On April 26, 1988, approximately two and a half months prior to trial, the parties submitted the proposed settlement of plaintiffs’ equitable claims now before the court. The consent decree that embodies the settlement retains substantially those measures ordered by the court as preliminary injunctive relief. It also seeks to make substantial improvements in several aspects of the foster care system including placing limits on the number of cases a worker may be responsible for, improving the system for providing medical treatment to foster children, providing assistance to natural parents that would allow children to remain with them thereby avoiding foster care where possible, and providing for a continuum of appropriate foster care placements including the recruitment of new foster homes. Different improvements are to be implemented at different times; however, all improvements are to be made within two years. After preliminary study of the decree and meeting with the parties, the court determined that the decree was within the range of reasonableness and approved a “Notice of Proposed Settlement of Class Action” on May 19, 1988. II. Under Fed.R.Civ.P. 23(e), notice of settlement of a class action “shall be given to all members of the class in such manner as the court directs.” The court directed that the approved notice of settlement, which contained a detailed summary of the proposed decree, be sent to all foster parents, all relatives with whom children had been placed by BCDSS, and all biological parents of children who had been placed in foster homes or with relatives on or before June 8, 1988. The Court also ordered that the notice be posted at any BCDSS office frequented by foster parents or by the natural parents of foster children. The full notice of settlement also was mailed to the heads of organizations known to represent foster children or known to have an interest in foster care issues. In addition to the mailing and posting of the full notice, a court-approved abbreviated notice was published five times in four daily newspapers. The notices informed interested parties that they could object to the decree at a hearing held on July 18,1988. Those interested in testifying at the hearing were told to submit written statements to the court by July 8; however, at the hearing all were invited to testify regardless of whether that requirement had been met. At the hearing, a total of ten people testified. These included foster parents, natural parents, a spokesman for a union which represents some foster care workers, a former foster child, and the husband of a foster care worker. None of those who testified objected to the decree. The foster parents expressed concern about the system for providing medical services to foster children. The former foster child told the court that she had been abused and molested while she was in the defendants’ care, and she asked the court to implement the decree as soon as possible. The union representative expressed concern with some provisions and omissions of the decree; however, he said that the union’s foster care worker members generally supported the decree. Both the union representative and the foster care worker’s husband urged the court to meet privately with the foster care workers, who did not wish to express any criticisms publicly. So that the court could hear the views of the people who would implement the decree on a day-to-day basis, an off the record meeting with foster care workers was held on August 3, 1988, with counsel present. During that meeting, the workers expressed several concerns. In particular, the foster care workers stated that they often travel hundreds of miles per month and asked that transportation aides be employed by BCDSS to assist them. They also said that a pool of temporary foster care workers should be available to assist when a worker is ill or on vacation. The foster care workers also asked that they be assured a role in the implementation and monitoring of the decree. III. The court’s approval of a proposed settlement is required in order to protect the interest of absent class members. Piambino v. Bailey, 610 F.2d 1306, 1327 (5th Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 568, 66 L.Ed.2d 469 (1980); Grunin v. International House of Pancakes, 513 F.2d 114, 123 (8th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). Accordingly, the Fourth Circuit has admonished that the district court is not “to give the settlement 'mere boilerplate approval’ ” that is “ ‘unsupported by evaluation of the facts or analysis of the law.’ ” Flinn v. FMC Corporation, 528 F.2d 1169, 1173 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (quoting, Protective Committee For Independent Stockholders of TMT Ferry, Inc. v. Anderson, 390 U.S. 414, 434, 88 S.Ct. 1157, 1168, 20 L.Ed.2d 1, reh. denied, 391 U.S. 909, 88 S.Ct. 1649, 20 L.Ed.2d 425 (1968)). The court “must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interest of those whose claims will be extinguished.” 2 H. Newberg, Newberg on Class Actions, § 11.40 at 451 (2nd ed.1985). Approval will be given only where a proposed settlement is determined to be “fair, reasonable and adequate.” In re Mid-Atlantic Toyota Antitrust Litigation, 605 F.Supp. 440, 442 (D.Md.1984) (quoting, Manual on Complex Litigation, § 1.46 at 56-57 (5th ed. 1982)); Washington v. Keller, 479 F.Supp. 569, 572 (D.Md.1979). In making that determination, this court has followed the bifurcated analysis set forth by Judge C. Stanley Blair in In re Montgomery County Real Estate Antitrust Litigation, 83 F.R.D. 305, 315-317 (D.Md.1979). See also, In re Mid-Atlantic Toyota Antitrust Litigation, supra, 605 F.Supp. at 442-43. “That analysis includes separate inquiries on the ‘fairness’ and the ‘adequacy’ of the proposed settlement.” Id. at 443. Regarding fairness, Judge Blair stated: The factors tending to reveal the ‘fairness’ of a settlement are those which indicate the presence or absence of collusion among the parties. Because of the danger of counsel’s compromising a suit for an inadequate amount for the sake of insuring a fee, the court is obliged to ascertain that the settlement was reached as a result of good-faith bargaining at arm’s length. The good faith of the parties is reflected in such factors as the posture of the case at the time settlement is proposed, the extent of discovery that has been conducted, the circumstances surrounding the negotiations and the experience of counsel, (citations omitted). In re Montgomery County Real Estate Antitrust Litigation, supra, 83 F.R.D. at 315. When inquiring into adequacy, “the court must weigh the likelihood of the plaintiffs’ recovery on the merits against the amount offered in settlement.” Id. at 315-316. Specifically, Judge Blair noted that: [CJourts should weigh the amount tendered to the plaintiffs against such factors as (1) the relative strength of the plaintiffs’ case on the merits; (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial; (3) the anticipated duration and expense of additional litigation; (4) the solvency of the defendants and the likelihood of recovering on a litigated judgment; and (5) the degree of opposition to the settlement. (citations omitted). Id. at 316. In Flinn v. FMC Corporation, supra, the Fourth Circuit further noted that “[t]he fact that all discovery has been completed and the cause is ready for trial is important, since it ordinarily assures sufficient development of the facts to permit a reasonable judgment on the possible merits of the case.” (footnote omitted). 528 F.2d at 1173. IV. This ease represents perhaps the most hotly and thoroughly contested litigation the undersigned has experienced in twenty years as a judge. Exhaustive discovery efforts were undertaken by both sides. As described earlier, the court has entered over seventy orders in this case and there are over two hundred entries on the docket. The court concludes that the settlement reached in this action was the result of good faith bargaining at arms’ length. Serious settlement negotiations commenced only after plaintiffs had completed a substantial random sampling of defendants’ case files as the major item of their discovery; after the court had granted a preliminary injunction following an evidentiary hearing that lasted twelve days; and after the Fourth Circuit had affirmed the injunction. See, L.J. by and through Barr v. Massinga, supra, 838 F.2d at 122. Discovery as to plaintiffs’ equitable claims is now complete. Settlement negotiations took place over a period of six weeks and included several half-day and full-day sessions. During these negotiations and throughout this litigation, plaintiffs have been represented by a dedicated, highly skilled, and very experienced team of attorneys. Two members of this team, including William L. Grimm, Esquire, who served as lead counsel, came from the Baltimore office of the Legal Aid Bureau, which represents the great majority of Baltimore’s foster children in the juvenile courts. Carol R. Golubock, Esquire, of the Children’s Defense Fund, has extensive experience in class litigation concerning child welfare law in federal courts. In addition, Nevett Steele, Jr., Esquire, and Ward B. Coe, III, Esquire, partners in the firm of Whiteford, Taylor and Preston, participated in representing the plaintiffs. Both have excellent qualifications and extensive experience in federal litigation, including class action litigation, before this court. Finally,' the question of attorneys’ fees was addressed separately from the negotiations concerning the terms of the decree. The discussion of fees was undertaken by a different group of lawyers and concluded well after the submission of the proposed consent decree. Under these circumstances, the court concludes that the settlement was reached in an appropriate manner and is the product of arms’-length bargaining. V. Had this action gone to trial, it is very likely that the plaintiffs would have succeeded. For the reasons stated in its Memorandum and Order of July 27, 1987, this court already has determined that success by the plaintiffs would be the likely outcome of a trial on the merits. No viable defenses to plaintiffs’ claims for equitable relief are apparent. In deciding whether the proposed consent decree is adequate, the court must weigh this likelihood of plaintiffs’ success on the merits against the quality of the relief afforded by the decree. In re Montgomery County Real Estate Antitrust Litigation, supra, 83 F.R.D. at 316. Any settlement of this action must afford the plaintiffs relief that is at least comparable to what they could have received following trial on the merits. The court’s ability to make an independent assessment of the adequacy of the settlement in this case rests on substantial knowledge of the problems facing Baltimore’s foster care system. This knowledge was acquired through study of the pleadings, meetings with the parties, conducting the settlement hearing, meeting with case workers, and, primarily, through the twelve-day-long preliminary injunction hearing at which hundreds of pages of documents were entered into evidence. Evidence presented during the preliminary injunction hearing revealed that many current foster homes are inadequate, and that there is a severe shortage of foster parents. As a result of the shortage of foster homes, defendants have been willing to grant exceptions allowing homes that should have been closed to remain open; have allowed some people to become or remain foster parents who should not have been; and have appeared reluctant to remove children from homes even when there should have been concern for their safety. Accordingly, had judgment on the merits been rendered and the court been charged with fashioning appropriate relief, it would have insisted that a diligent effort be made to recruit new homes. Specific numbers of new foster homes might have been ordered opened by specific dates. Paragraph 11 of the proposed consent decree addresses recruitment of new foster homes. It does not state specifically what efforts will be made nor estimate how many homes will be opened. Paragraph 11 provides: Defendants shall maintain a foster home recruitment unit in Baltimore City Department of Social Services. The unit shall develop and implement a sustained recruitment plan, and shall issue periodic reports on the status of its recruitment efforts. The court’s concern regarding paragraph 11 were heightened by published news accounts of the decree in which defendant Ruth Massinga, Secretary of the Department of Human Resources, was quoted as suggesting that, under the terms of the decree, children could be left in the homes of their natural parents if space in the foster care system was not available. Naturally, the criteria for deciding when a child is to be removed from the home should focus on the well-being of the child. If the safety of the child requires that a child be removed from the natural parents, space must be available in foster care. Any settlement that provides otherwise is simply inadequate to protect these children and unworthy of the court’s approval. Read in its entirety the proposed decree does appear to provide that foster care placements will be made available for all children who need them. Indeed, paragraph 9 provides in part, that “defendants shall establish and maintain a continuum of foster care placements reasonably calculated to ensure that there are appropriate foster care placements for all children who come into foster care.” During two conferences and in a lengthy letter, the court sought clarification and interpretation of the decree from the parties as to these issues. Defendants responded in their memorandum in support of the decree submitted on July 11, 1988 and at the settlement hearing held on July 18, 1988. In their memorandum and at the hearing, defendants stressed that the decree represents a balance between efforts toward family preservation (aimed at keeping children with their natural parents where possible) and efforts to provide additional foster care placements. Specifically, defendants’ memorandum declares that: ... [Fjederal law mandates equivalent efforts in family preservation and foster care initiatives and defendants believe that these programs complement each other. Thus, the decree contains provisions with respect to each of these complementary programs. Foster home recruitment and services will be enhanced significantly under the decree. Specifically, recruitment efforts have been and continue to be extensive. Similarly, significant funding has been obtained to provide intensive family services to prevent children from coming into foster care. Reunification services are also recognized under the decree. In sum, the Consent Decree adequately addresses the need to provide for foster care placements along a continuum of appropriate placements, including the recruitment of regular foster homes, and simultaneously addresses the need to keep, where appropriate, children from entering the foster care system.... Defendants’ Memorandum in Support of defendants’ Motion for Approval of the Consent Decree, pages 9 and 10 (citations omitted). See also transcripts of settlement hearing held July 18, 1988, page 88. Defendants’ memorandum relies on the accompanying affidavits of Philip C. Holmes, Director of the Office of Child Welfare Services of the Social Services Administration of the Maryland Department of Human Resources, and Regina M. Bernard, Director of the Office of Family and Child Development of the Social Services Administration of the Maryland Department of Human Resources. Mr. Holmes avers that the Department of Human Resources “will continue to intensify efforts to recruit foster parents,” and that the Department of Human Resources and the Baltimore City Department of Social Services “both have aggressive campaigns to solicit applications from new families.” Efforts to recruit new foster homes include increases in the board rates paid to foster parents and an aggressive public relations campaign. With these clarifications in mind, it is the opinion of the court that, if properly implemented, the consent decree will result in substantial and needed improvements in Baltimore’s foster care system, and is adequate to protect the interests of these plaintiffs. Indeed, the decree appears to represent an innovative approach aimed at keeping children with their parents, where possible, coupled with efforts to provide additional and varied placement where placement in foster care is required. Under the “Intensive Family Services” program provided for by the decree a social worker is made available during a period of ninety days for as many hours as necessary to alleviate a family crisis threatening removal of a child from the parents’ home. See Affidavit of Regina M. Bernard; Consent Decree, par. 15. During this period, a variety of services are made available to the parents that will help them to better care for the child. Consent Decree, par. 15. A similar program is also to be initiated to facilitate quick reunification in some cases where the child is removed from the home. Id. par. 17. Among the variety of placements that will be provided, in addition to the recruitment of new regular foster homes, are emergency shelter care placements and specialized foster care placements for children with specialized needs. Id. par. 9. In its order of July 27, 1987 granting preliminary injunctive relief, the court included various remedial measures intended to provide increased protection to foster children until a full hearing on the merits could be held. The court’s confidence in the settlement is strengthened by the inclusion of several of these measures as part of the decree. These include requirements that each foster home be visited once a month; that, if an abuse or neglect complaint is received regarding a home, visits be made once a week, id., par. 22-24; copies of the abuse or neglect report be provided to the child’s attorney, id., par. 30; and that some major improvements be made in the system for providing health care to foster children. Id., par. 21A-F. Most important in assessing the adequacy of the settlement proposed in this action is the great degree to which the decree provides plaintiffs with substantially all the equitable relief they requested from the court in their complaint. The relief provided under the terms of the decree is comprehensive in scope and includes provisions that strengthen requirements for education of foster children, id., par. 19; require certain information about foster children to be provided to their foster parents, id., par. 14; increases foster care stipends, id., par. 10; and provides for training of foster parents and foster care workers, id., par. 6, 7, and 13. Importantly, the decree requires substantial decreases in the work load of foster care workers by providing low maximum case loads for workers, id., par. 5. The preliminary injunction hearing revealed serious deficiencies in the system for providing health care to foster children. Specifically, the court found that incomplete medical histories were provided to medical care professionals and that treatment rendered to foster children was episodic rather than continuous. Accordingly, as preliminary injunctive relief, the court required defendants to assign sufficient staff and resources to ensure that proper medical histories are obtained and that appropriate medical care is provided foster children. The decree amplifies and expands on the court’s preliminary injunctive relief, id., par. 21. It requires that an initial health care screening take place within twenty-four hours of the child’s placement in foster care; that a comprehensive health assessment be completed within sixty days of placement; and that complete medical histories containing specific information be obtained and provided to physicians. Defendants are responsible for ensuring that treatment for any diagnosed problems is promptly provided. Foster children placed in the homes of relatives are not expressly mentioned in the plaintiffs’ prayers for relief. At the time plaintiffs’ amended complaint was filed with the court, plaintiffs’ counsel were unaware that this group of foster children was treated far differently from other foster children. Indeed, at the time of the preliminary injunction hearing, it appeared that foster children placed with relatives were not considered nor included as part of the foster care system. Children placed with relatives were not counted in the foster care system inventory and their caretakers did not receive foster care benefits. According to defendants, approximately 1,100 children are placed with their relatives. At this time, most of the provisions of the decree will not be applied to them; instead a study by an impartial consultant will be undertaken in which the status of each child placed with a relative will be assessed. Id., Par. 27A. The plaintiffs may request additional relief for these children when the impartial assessment is completed. Id., par. 28. The decree, however, does provide for the immediate implementation of certain basic protections for children placed with relatives, including the development of case plans; six and eighteen-month reviews by persons outside the BCDSS, and bimonthly home visits to ensure compliance with health and safety standards. Id., Par. 25-28. In addition, relatives providing care to foster children will be encouraged to apply for licensure as foster parents. Id., Par. 25D. Care being provided to these children also will be evaluated by means of contacts with their teachers and medical case providers. Id., Par. 27B. Although the court required a thorough notice to the class, there were no outright objections lodged against the decree. Both the Foster Care Review Board and foster care workers, however, did express some reservations. In a letter to the court dated July 14, 1988, the chairperson of the State Foster Care Review Board expressed particular concern about the lack of foster homes. Joan L. Graham wrote that the lack of homes “keeps the placement of children at a crisis level, results in inappropriate, short term placements and multiple placements for some children.” As noted earlier, the court shares the Board’s concern that more be done to recruit adequate foster homes. In deciding that the decree adequately protects this class of children, the court relies on defendants’ assurances and interpretation of the decree as requiring vigorous efforts to recruit new homes. At the settlement hearing addressing the adequacy of the consent decree and later during a conference with the court, foster care workers expressed strong reservations about whether the terms of the decree could be implemented from a practical standpoint. They emphasized that they will be charged with the responsibility of implementing the decree on a day-to-day basis, and, without the benefit of additional resources, they doubted they could carry out the decree’s terms. Specifically, the foster care workers noted that they are often required to travel hundreds of miles in a month in order to meet their obligations. They also must take on additional obligations when a co-worker is sick or on vacation. It is the apparent consensus among foster care workers that they will be unable to make the additional visits to foster homes and foster children required by the decree without additional resources. Accordingly, the workers asked the court to amend the decree to require their superiors to provide transportation aides and a pool of temporary substitute workers. The transportation aides could assist workers in meeting requirements to visit foster homes and also assist in transporting children and foster parents to medical and other appointments. A pool of temporary or substitute case workers could take over cases assigned to workers who are unable to be at work without the necessity of over-burdening other regular workers. Noting that the suggestions of the foster care workers had substantial practical merits, the court wrote the parties and asked if transportation aides and a pool of temporary workers might be agreed upon as a means of properly implementing the decree. In response, both parties informed the court that these measures had been a subject of the negotiations that produced the decree. It was determined in those negotiations, however, that the specific measures adopted in order to achieve the requirements of the decree were to be left to the judgment of the defendants, at least at this early stage. Furthermore, during the meeting with foster care workers, counsel for the plaintiffs emphasized that, if the requirements of the decree could not be met by case workers, the defendants would be required to reduce the case load ratios of children to foster care workers below the maximum ratios allowed by the decree. In this way, the work load would be lessened to allow the foster care workers to better meet their obligations under the decree. The foster care workers also asked that they be allowed to participate in the implementation and monitoring of the decree. Specifically, they requested to receive the reports required every six months from the BCDSS and the Department of Human Resources that set forth the steps taken to achieve compliance with the decree, and requested that they be given an opportunity to be heard. During its August 3rd meeting with foster care workers, the court was impressed by their commitment to foster children and their strong desire that the foster care system be improved. Moreover, since these workers will implement the decree on a day-to-day basis, their views may be worth hearing in the future. Accordingly, as part of its enforcement powers, the court will order that defendants deliver the six month reports to the foster care workers. Should they wish to be heard after receiving a report, the court would seriously consider such a request at that time. VI For the reasons stated above, the court finds that the consent decree submitted by the parties on April 26, 1988 is fair, reasonable, adequate and deserving of approval. The court closes with a personal note and word of caution. I have now been a judge for twenty years. During this time much human tragedy has passed before me; however, none has so deeply touched me as the plight of these children. I believe that vigorous enforcement of this decree is essential, and I will do all within my power to see that its provisions are fully implemented. ADDENDUM A: CONSENT DECREE CONSENT DECREE This Decree is made and entered into by and between all of the named plaintiffs, L.J., O.S., M.S., C.S., P.G., R.K., and S.J., and the certified class of persons whom plaintiffs represent as set forth in the January 16, 1987 Order of this Court (hereafter described in Attachment A and collectively referred to as “plaintiffs”) and all defendants. WHEREAS, on or about December 5, 1984, plaintiffs commenced an action in the United States District Court for the District of Maryland (hereinafter “the Court” or “this Court”) and thereafter filed a first amended complaint, and plaintiffs R.K. and S.J. filed a motion to intervene, which was granted herein on or about January 21, 1987; WHEREAS, plaintiffs’ complaint, amended complaint, and complaint in intervention make certain allegations and seek certain relief with respect to the foster family care program administered by the State of Maryland, particularly as that program is administered by the Baltimore City Department of Social Services; WHEREAS, defendants deny all of the allegations of the complaint, amended complaint, and complaint in intervention, particularly all legal contentions that any defendant has ever violated any State or federal law in the conduct of the family foster care program; WHEREAS, plaintiffs allege that children who are committed by the juvenile court to the defendants’ care and custody and who are placed with their relatives are entitled to the same protections as children placed with non-relatives, and defendants dispute that the same protections apply to these children; WHEREAS, defendants have taken and continue to take substantial positive actions to improve the quality of care and services provided to foster care children; and WHEREAS, in an effort to avoid further litigation, plaintiffs and defendants believe that settlement of this matter and entry of this Consent Decree is in the public interest, without any admission of liability by any defendant for any purpose, to settle and resolve all claims for declaratory relief and equitable relief, including injunctive relief, raised in the complaint, amended complaint, and complaint in intervention, and all matters addressed in this Decree. NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, and DECREED as follows: JURISDICTION 1. This Court has jurisdiction of the subject matter of this Consent Decree. In the event of subsequent litigation relating to the matters in this litigation other than in an action to enforce this Decree, defendants retain and have the right to contest jurisdiction, venue, and/or assert any other defenses. PARTIES 2. The provisions of this Consent Decree shall apply to and be binding upon the parties to this civil action, and upon their employees, heirs, successors-in-interest, and assigns. 3. The undersigned representatives of the plaintiffs and defendants certify that they are fully authorized subject to the Federal Rules of Civil Procedure to enter into and to execute the terms and conditions of this Consent Decree and to legally bind the parties, including all members of the certified plaintiff class. 4. The parties agree that the defendants’ obligation to give notice of this Consent Decree to the plaintiff class is restricted to giving notice to their undersigned counsel by their signing and receipt of this Decree, receipt of which is hereby acknowledged. In addition, defendants will send out notice of this Consent Decree to all foster parents, to all relatives with whom DSS has placed children, to all parents known to defendants as having children in foster care or placed with relatives and to the organizations listed in Attachment B. ASSIGNMENT OF CASEWORKERS AND CASES 5. Within two years of the date of the entry of this Decree: (a) continuing care caseworkers in the Baltimore City Department of Social Services (hereinafter “DSS”) who are responsible for children in foster care, other than those aftercare workers responsible for children for whom a recission order has been requested, shall have average caseloads of no more than 20 children and their biological families; (b) intake caseworkers in DSS who are responsible for a caseload of children in foster care shall have average caseloads of no more than 14 children and their biological families; (c) DSS caseworkers who are responsible for the supervision of foster family homes shall have an average caseload of no more than 40 foster families; (d) immediate supervisors of DSS foster family care workers shall have an average of no more than six caseworkers under their supervision; and (e) the standard with respect to the transfer of cases when a worker leaves DSS or transfers to another unit shall be as follows: When a worker leaves or transfers to another unit, the supervisor shall reassign cases, except for priority cases, to other workers within five working days. The supervisor may, based on the needs of the unit, retain a priority case or reassign it. Priority cases will include those in which a child requires a new placement; a child has medical needs or imminent appointments; a child has impending juvenile court or administrative review; or a child is the subject of a report of maltreatment. There shall be a conference between the supervisor and the new worker within 10 working days of reassignment. If possible, the former worker shall attend the conference. The topics to be discussed at this conference shall include, among other things, a discussion of any immediate unmet needs of the child, therapy and evaluations in progress, and existing service agreements. CREDENTIALS AND TRAINING OF CASEWORKERS 6.Defendants shall continue their current policy that no DSS caseworker without at least a B.S. or a B.A. degree shall have responsibility for supervising the continuing care of children in foster family homes. 7. A. Within two years of the date of entry of this Decree, all caseworkers shall receive at least four days of orientation and training relating to the substantive aspects of the caseworker’s responsibilities within 60 days of beginning employment as a DSS caseworker. Such training will take into account the level of prior child welfare experience and the need for additional training for those with limited or no prior training. Such training will include casework skills; interviewing; developing service agreements and case plans; working with families; and the structure and law governing child welfare. B. Within two years of the date of entry of this Decree, all caseworkers shall receive annually 20 hours of training relating to the substantive aspects of the caseworker’s responsibilities. This training shall begin for each caseworker during his or her second year of employment. SPECIALIZED SUPPORT UNIT 8. Within six months of the entry of this Decree, defendants shall establish within DSS a specialized unit to assist caseworkers and supervisors to manage effectively cases that require specialized experience and/or knowledge in areas such as assisting children or parents who need services for drug and alcohol abuse; special educational needs; developmental disabilities; mental health or other specialized health care needs; or the development of independent living skills. This unit shall assist workers in identifying, locating and obtaining resources or services for drug and alcohol abuse; special educational needs; developmental disabilities; mental health or other specialized health care needs; or the development of independent living skills. The responsibilities of this unit do not include direct case responsibility or the providing of direct services. FOSTER PLACEMENT RESOURCES 9. Within two years of the entry of this Decree and to the extent within their control, defendants shall establish and maintain a continuum of foster care placements reasonably calculated to ensure that there are appropriate foster care placements for all children who come into care. The continuum shall include regular foster homes, specialized homes, emergency shelter homes, emergency shelters, group homes and therapeutic foster homes as defined in COMAR. (Therapeutic foster homes are homes in which foster parents receive a salary and other services in addition to the foster care board rate.) In addition, defendants shall seek annually sufficient funds through their budget requests or elsewhere (i) to purchase special services for children in foster care needed to prevent their institutionalization, and (ii) to assure stipends to emergency shelter care homes even in months in which no children are being cared for. 10. Defendants shall continue their past practice of seeking through the budget process increases in the rate of reimbursement paid to foster families by including such increases in their budget requests and advocating for their appropriation with the goal of reaching by State Fiscal Year 1991 a rate of no less than the amount determined by the United States Department of Agriculture as necessary to care adequately for children in urban areas of the southern region of the country. 11. Defendants shall maintain a foster home recruitment unit in DSS. The unit shall develop and implement a sustained recruitment plan, and shall issue periodic reports on the status of its recruitment efforts. 12. Within one year of entry of this Decree, defendants shall require as a condition of licensure that all new foster parents complete a course of pre-service training of at least 12 hours. The training shall cover an appropriate curriculum, including applicable DSS regulations; the role of the foster parents and the child’s caseworkers; the special needs of foster children; the need to work with natural parents; appropriate disciplining methods and alternatives to corporal punishment; the importance of utilizing medical, dental, educational, and other community services; and the legal rights of foster parents, children and natural parents. 13. Defendants shall require foster parents to participate in at least six hours of foster parent training a year. One year after entry of this Decree, no foster parent’s license may be renewed unless one of the foster parents in the home has received the required training. Defendants shall seek through the budget process and advocate for their appropriation funds to pay foster parents a reasonable sum in consideration of their attendance at required training including reasonable transportation and child care expenses. INFORMATION ON FOSTER CHILDREN 14. Before a child is placed in a foster home, DSS shall provide the foster parents necessary information about the child including the reason for the child’s coming into care initially and, if applicable, the reason for the current placement; medical, psychological or behavioral problems that the child may have of which the agency has knowledge and any on-going treatment the child is receiving for any such problems of which the agency has knowledge. In addition, DSS shall make reasonable efforts to provide foster parents with the child’s recent grade and attendance record in school. If an emergency placement is necessary, defendants shall provide the information to the foster parent within ten working days of placement. PERMANENCY AND INTENSIVE FAMILY SERVICES 15. A. Except in emergency situations where a child faces a substantial risk of harm and where services cannot prevent the removal of the child, reasonable efforts will be made by the appropriate DSS personnel prior to placement of a child in foster care to prevent or eliminate the need for removal of the child from his or her home. Such reasonable efforts to prevent or eliminate the need for placement or to reunify a child who has been placed shall include, where appropriate in the worker’s professional judgment, the provision or securing of family counseling services, drugs and alcohol abuse services, day care, parenting education services and assistance provided under the federal Emergency Assistance to Families with Children program to the extent allowed by law. Services and assistance shall be provided in a duration and intensity reasonably assured of meeting their goal. B. Defendants shall seek through the budget process and advocate for their appropriation sufficient funds to provide a program of intensive family services the goal of which shall be to reduce the number of children who need to be removed from their biological homes. C. A case plan for each child in foster care shall set forth the services and assistance that have been provided to prevent or eliminate the need for removal from the home and the reasons those efforts did not succeed. 16. In all cases in which the goal is to return a foster child to his or her biological home, defendants shall make reasonable efforts to facilitate weekly visits between the parent and child, unless the juvenile court orders otherwise, or DSS finds that such visits are not in the child’s best interest. Before permanent reunification, overnight and weekend visits should be provided if appropriate. 17. A. In each case in which the case plan is the child’s return home, DSS shall enter into a service agreement with the biological parent of the child within 60 days of the child’s placement unless the parent is unavailable or unwilling to agree. The agreement shall set forth the current barriers to the child’s return home, the steps the parent must take in order to have the child returned to him or her, the timelines for completion of these steps, the services, if any, the caseworker and DSS will provide to the parent (for example, referral to alcohol abuse counseling) and the timelines within which any services will be provided. B. Defendants shall continue to follow the guidelines for workers on when a permanency plan shall be changed from return home. Such guidelines require that the case plan goal be changed promptly when the parent fails continuously to fulfill terms agreed to in the service agreement and/or when the parent has not maintained regular visitation or other contact with the child. 18. A petition for termination of parental rights shall be filed on behalf of each child for whom the goal is adoption within 120 days of the DSS establishing such a goal. EDUCATION 19. A. Within five working days of being placed in nonemergent foster care, a child of school age shall be attending school (if school is in session), unless school attendance within five working days is unattainable for reasons outside the control of DSS. In such cases, DSS will make all reasonable efforts to obtain school attendance as soon as practicable. B. If a child’s caseworker has reason to believe that a foster child may be educationally handicapped and is not receiving special educational services, the worker shall promptly notify the local educational agency and request a screening for that child in writing. The child’s caseworker shall be responsible for: (1) providing, when requested, all evaluations of the child contained in DSS files; (2) attending meetings on behalf of the foster child relating to identification, evaluation and placement of the child in a special educational program, where possible; (3) providing the address of the biological parents to the local education agency if contained in DSS files; and (4) facilitating appointments for evaluation of the child relating to the special educational decision-making process. C. Within two years of the entry of the Decree, all caseworkers shall receive training with respect to the special education screening, evaluation, assessment and individualized education plan process. Thereafter, the worker shall notify the child’s attorney if these services are not provided in a timely fashion. D.If DSS holds guardianship with the right to consent to adoption or long-term care short of adoption of a child and that child is educationally handicapped or is suspected of being educationally handicapped, the child’s caseworker shall provide the local education agency with appropriate documentation of the child’s legal status so that the school can apply for the appointment of a parent surrogate. EXPLANATION OF RIGHTS 20. Within six months of entry of this Decree, defendants shall prepare a handbook describing the rights and responsibilities of foster children, biological parents and foster parents. Defendants shall provide a draft of the handbook to plaintiffs’ counsel. Defendants shall consider, but need not adopt, any suggestions plaintiffs’ counsel report to defendants within 30 days of receipt of the draft handbook. Thereafter, the defendants shall cause the handbook to be reproduced and distributed to all current foster children, where age appropriate, their biological parents and all current foster parents. The handbook shall be provided to all new foster children, where age appropriate, their biological parents, and all new foster parents. HEALTH CARE 21. A. Defendants shall develop and maintain a medical care system reasonably calculated to provide comprehensive health care services to foster care children in a continual and coordinating manner in accordance with their needs. B. All foster children shall have an initial health care screening if possible before placement in an out-of-home care setting, but in any event, no later than 24 hours following placement. C. All foster children shall be referred for a comprehensive health assessment within 30 days of entering placement. The assessment shall be completed within 60 days of entering placement. This assessment shall address the child’s medical, emotional and developmental needs. The results of this assessment will be made available to the child’s health care provider(s). The provider(s) selected by DSS to provide health care for the child shall be reasonably calculated to meet the child’s specific needs identified by the assessment. D. All foster children shall have periodic medical, dental and developmental examinations in accordance with the schedules or protocols of the EPSDT. If needs are identified at the periodic examinations that were not identified previously, the providers) selected by DSS shall be reasonably calculated to meet these additional needs. E. For each child in foster care the defendants shall develop and use an abbreviated health care record (e.g., medical passport), which shall accompany the child through the out-of-home care system and upon his or her return home, adoption or emancipation. An abbreviated health care record shall require the following information: the medical facilities where the child usually receives care, the child’s condition at placement as documented by his or her physician, and the child’s immunization record, allergies/adverse reactions, chronic health problems and present medications. The foster parents of the child shall be provided with the health passport completed to the extent possible at the time of a child’s replacement or if an initial placement within 5 days of placement. Copies of the forms contained in the passport shall be included in the child’s case record and shall be reviewed by a supervisor at least every 6 months. F. Within two years of entry of this Decree, defendants shall establish and maintain a health services management unit within DSS. This unit shall be staffed by one or more health professionals who are trained and experienced in child health care. CASEWORKER VISITS WITH FOSTER CHILDREN 22.Each child in a foster family home shall be visited by their assigned caseworker or his or her substitute at least once every month. The purpose of the visit is to assess the quality of care being provided to the child and the child’s adjustment to the foster home, foster parents, other persons present in the home, and school. The interview shall be of sufficient duration and privacy to evaluate the child’s adjustment to placement in the foster home. The caseworker shall indicate the date and summarize the results of each visit in the child’s case record. Where indicated, the caseworker, based on his or her professional judgment, shall visit or contact the child more frequently. During the first three months a child is placed or replaced, the caseworker shall visit or contact the child more frequently when in his or her professional judgment such is appropriate. 23. If an abuse or neglect complaint is filed pertaining to a foster family home, the assigned caseworker(s) shall visit the home at least once a week until the complaint is ruled out. 24. If an abuse or neglect complaint is not ruled out, the caseworkers shall visit the home at least once a week until the children are removed from the home or until the juvenile court orders otherwise or the child’s attorney and DSS agree otherwise. PLACEMENT WITH RELATIVES 25. A. A child committed by the juvenile court to DSS may be placed with his or her relative(s). B. Such a child shall be provided a case plan and 6-month administrative and 18-month juvenile court reviews of his or her placement. DSS shall request that the Foster Care Review Board conduct the 6-month administrative reviews. C. Within six months of the date of entry of this Decree, each child placed with a relative shall be visited by a caseworker no less frequently than once every two months. D. A relative with whom a child committed to DSS has been placed may apply for a license as a foster family home. DSS shall inform the relative of the benefits of and requirements for licensure. 26. A. Within one year of the date of the entry of this Decree, DSS shall complete an inventory of each relative placement to determine whether each home meets basic health and sanitary standards such as the existence of adequate heat, light, water, cooking and refrigeration facilities, toilet facilities and smoke detectors, and the absence of exposed wiring, rodent or insect infestation, broken windows, doors or steps, and holes in walls or ceilings. If the DSS employee or agent conducting the inventory observes evidence of any threat to the child’s health or safety, the DSS employee or agent, if other than the child’s worker, shall report that evidence to the child’s worker. The results of the inventory shall be made available to plaintiffs’ attorneys upon the issuance of a protective order. B. In addition, defendants will seek the necessary statutory authority to conduct criminal background investigations for relative caretakers and others known to be in the household. After such approval is obtained, DSS shall conduct such investigations for existing and prospective caretakers and others known to be in the household. C. Within six months of the entry of this Decree, DSS shall determine if a home meets basic health and sanitary standards within 30 days of placement. 27.A. Within one year of the entry of this Decree, an assessment shall be made of the health and educational status of each child placed with a relative. The assessment shall be completed by an impartial consultant selected through the State procurement process. The selection of the consultant shall be made by an evaluation committee or review panel. One member of the committee or panel shall be mutually acceptable to the parties. B. The consultant shall oversee the gathering of data for the assessment. The assessment shall include contacts with the child’s education provider and medical provider. The consultant shall determine generally the child’s educational and medical status and the existence, if any, of unmet needs of the child. The child’s caseworker shall make reasonable efforts to facilitate the child’s obtaining educational and medical services sufficient to address the identified unmet needs. A report of the assessment result in regard to each child shall be made available on a quarterly basis to plaintiffs’ attorneys upon the issuance of a protective order. 28. Within 30 days of receipt of the final consultant's report, plaintiffs may file objections pursuant to ¶ 35 of this Decree, including a statement of why children placed with relatives are entitled to additional protections. REPORTS OF ABUSE AND NEGLECT 29. Whenever a DSS employee has reason to suspect that the abuse or neglect of a child in foster care or a child placed with a relative has occurred, the DSS employee shall notify the protective service unit of DSS. Children who are the subject of an abuse report shall be visited within 24 hours of the receipt of a complaint by either a protective services worker or staff of the police department. Children who are the subject of a neglect report shall be visited within five days. 30. Whenever there is a report of abuse or neglect of a child in a foster family home or a child placed with a relative, DSS shall notify the attorney for the child in a foster family home and, within six months of the entry of this Decree, the attorney for the child placed with a relative, if it knows of any, the child’s biological parents unless psychologically contraindicated or their whereabouts or identity is unknown, and such other persons as are required to be notified by State law. Notification to the child’s attorney and/or biological parents shall be within five working days of receipt of a report. A copy of the report shall be provided to the child’s attorney. The completed disposition of the complaint shall be submitted to the child’s attorney within five working days of its completion. SCOPE AND APPLICATION OF DECREE 31. This Decree shall apply only to those children certified as members of the plaintiff class. This Decree creates no rights in favor of any other person and creates no obligations or duties on the part of defendants with respect to any programs other than the DSS foster family care program and the DSS services to extended families with children program. A violation of this Consent Decree shall not create a new, independent private cause of action for damages for anyone. Nothing set forth in this paragraph shall bar the Court’s contempt power for violation of the Decree. REPORTING, MONITORING AND ENFORCEMENT 32. If the Court ever finds that any defendant, or any successor of any defendant, has failed to satisfy his, her or its obligation under this Decree, the Court shall not order any extraordinary relief (including the imposition of a fine or imprisonment) against or respecting that defendant or against any defendant (either to punish a defendant for alleged non-compliance or to stimulate future compliance) unless the Court first finds by a preponderance of the evidence that the defendant(s) failed to meet his, her, their or its obligations due to some fault or lack of good faith on the part of the defendant(s). 33. Beginning six months following the entry of this Decree and at six-month intervals thereafter, defendants shall file with the Court a report setting forth the steps they have taken to achieve compliance with this Decree. A copy of the report shall be served on plaintiffs’ attorneys of record. The report shall include the following data from a six month period ending no earlier than two months before the date of the report: a. the number of DSS foster care, continuing care and intake caseworkers; the number of immediate supervisors of such caseworkers; and the number of average cases for continuing care workers and for intake workers; b. the number of DSS foster home caseworkers, the number of immediate supervisors of such caseworkers; and the number of average cases; c. the number of restricted and general foster homes approved; d. the number of children’s and home caseworkers who have been hired; e. schedule of the rates of reimbursement available to foster parents; f. the number of emergency foster homes and the number of children who can be served by each home; g. effective July 1, 1988, the number of current foster parents who have completed the requisite pre-service and/or continuing training; h. the number of foster children receiving aftercare services who are placed with a relative, the number of foster children who are placed with a relative in a restricted foster home, and the number of children who are committed by the juvenile court to DSS and who are placed in a relative home, which home is not a licensed foster care home; i. the number of compla