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finding that experts adequately relied on “accepted professional standards,” including those from CWLA and COA
Summary of this case from M.D. v. AbbottOpinion
Civil Action 1:02-cv-1686-MHS.
December 11, 2004
ORDER
This action is before the Court on State Defendants' motion for summary judgment and motion to exclude reports and testimony of plaintiffs' experts. For the following reasons, the Court denies both motions.
Also before the Court are motions for summary judgment filed by Fulton and DeKalb Counties. The Court will address those motions in a separate order.
Background
This is a class action brought on behalf of foster children in Fulton and DeKalb Counties. Plaintiffs seek prospective injunctive relief to remedy alleged violations of their constitutional, statutory, and common law rights arising from numerous alleged failures by Georgia's state-run foster care system to provide them with safe and appropriate placements and services. Defendants are the Governor of Georgia, the Georgia Department of Human Resources and its Commissioner, the Fulton County Department of Family and Children Services (Fulton DFCS) and its Director, and the DeKalb County Department of Family and Children Services (DeKalb DFCS) and its Director (State Defendants), as well as Fulton and DeKalb Counties (County Defendants).
In their First Amended Complaint, plaintiffs allege that State Defendants' failure to provide foster children with safe and appropriate placements and services gives rise to claims for (1) substantive and procedural violations of the Due Process Clauses of the United States Constitution and the Georgia Constitution (Counts III, IV, and XVII); (2) violations of liberty, privacy, and associational rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution (Count V); (3) violation of rights under the Equal Protection Clause of the Georgia Constitution (Count XIV); (4) violation of federal statutory rights under the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997 (Adoption Act) (Count VIII); the Multiethnic Placement Act of 1994, as amended by the Inter-ethnic Adoption Provisions of 1996 (Multiethnic Placement Act) (Count XV); and the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program of the Medicaid Act (Count XVI); (5) violation of state statutory rights under O.C.G.A. §§ 49-5-12, 15-11-58, 15-11-13, and 20-2-690.1 (Counts VI, VII, IX, and X); and (6) breach of contract (Count XII). In addition, plaintiffs allege that County Defendants' failure to provide foster children with adequate and effective legal representation in deprivation and termination-of-parental-rights proceedings violates their rights under the Georgia Constitution and O.C.G.A. § 15-11-98(a) (Count XIII).
State Defendants move for summary judgment on all of plaintiffs' claims against them. In a related motion, State Defendants also seek to exclude the reports and testimony of plaintiffs' experts on the grounds that they are inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. The Court will first address the motion for summary judgment and then the Daubert motion. Discussion
I. Motion for Summary Judgment
A. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is "no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law." In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court held that this burden could be met if the moving party demonstrates that there is "an absence of evidence to support the non-moving party's case." Id. at 325. At that point, the burden shifts to the non-moving party to go beyond the pleadings and present specific evidence giving rise to a triable issue. Id. at 324.
The Court, however, must construe the evidence and all inferences drawn from the evidence in the light most favorable to the non-moving party. WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir. 1988). Moreover, because the summary judgment standard mirrors that required for a judgment as a matter of law, summary judgment is not appropriate unless "under the governing law, there can be but one reasonable conclusion as to the verdict."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted).
B. Substantive Due Process
State Defendants argue that in order to make out a substantive due process claim plaintiffs must satisfy the deliberate indifference standard set out in Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en banc). In Taylor, the Eleventh Circuit held that a child involuntarily placed in a foster home who was severely and permanently injured by her foster mother could recover damages from state officials only upon a showing that they had been "deliberately indifferent" to her welfare. Id. at 797. State Defendants contend that the evidence demonstrates that they have not been deliberately indifferent to plaintiffs' welfare. To the contrary, they argue, "[t]he record is replete with testimony and documentary evidence showing State Defendants' continuing efforts to improve services and outcomes for children and families as a whole, and in particular to assess and address potential health and safety risks to children in foster care." (State Def's. Mem. of Law in Supp. of Mot. for Summ. J. at 35.)
In response, plaintiffs argue that the Court should apply the professional judgment standard enunciated by the Supreme Court inYoungberg v. Romeo, 457 U.S. 307 (1982), rather than the deliberate indifference standard. In Youngberg, the Supreme Court held that state officials responsible for a mentally retarded individual involuntarily committed to a state institution could be held liable for decisions that were "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. at 323 (footnote omitted). Plaintiffs argue that there is overwhelming evidence that the care and services provided to them by State Defendants fall well below minimal professional standards. Plaintiffs also argue that summary judgment would be inappropriate even under the deliberate indifference standard, because the evidence shows that State Defendants have long known of the harms being suffered by foster children due to shortcomings in the foster care system but have failed to undertake necessary and reasonable measures to lessen or eliminate these harms.
The Court concludes that the appropriate constitutional standard in this case is the professional judgment standard. The deliberate indifference standard is rooted in the Eighth Amendment's prohibition on cruel and unusual punishment, which generally applies only in the prison setting. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that deliberate indifference to prisoner's serious medical needs violates Eighth Amendment). In Youngberg, however, the Supreme Court held that a higher constitutional standard applies outside the prison context: "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." 457 U.S. at 321-22. The Court went on to endorse the professional judgment standard for determining whether state officials have adequately protected the rights of the involuntarily committed mentally retarded. Id. at 322-23.
Foster children who have been taken into state custody due to abuse or neglect are clearly more like the mentally retarded plaintiff in Youngberg than the prisoner in Estelle. Accordingly, following Youngberg, three circuit courts of appeals have applied the professional judgment standard in the foster care setting. Yvonne L. v. N.M. Dep't of Human Servs., 959 F.2d 883, 894 (10th Cir. 1992); Winston v. Children and Youth Servs. of Delaware County, 948 F.2d 1380, 1391 (3rd Cir. 1991); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 854 (7th Cir. 1990). A number of district courts have followed suit. See Brian A. v. Sundquist, 149 F. Supp. 2d 941, 953-54 (M.D. Tenn. 2000); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 507 (D.N.J. 2000); T.M. ex rel. Cox v. Carson, 93 F. Supp. 2d 1179, 1187 (D. Wyo. 2000); Wendy H. v. City of Philadelphia, 849 F. Supp. 367, 372 (E.D. Pa. 1994);LaShawn A. v. Dixon, 762 F. Supp. 959, 996 (D.D.C. 1991). State courts considering the issue have reached the same conclusion.See Braam v. State of Washington, 81 P.3d 851, 857-58 (Wash. 2003); Kara B. v. Dane County, 555 N.W.2d 630, 637-38 (Wis. 1996).
The arguments cited by these courts for adopting the professional judgment standard are persuasive. As the Tenth Circuit succinctly put it:
The compelling appeal of the argument for the professional judgment standard is that foster children, like involuntarily committed patients, are "entitled to more considerate treatment and conditions" than criminals. These are young children, taken by the state from their parents for reasons that generally are not the fault of the children themselves. The officials who place the children are acting in place of the parents.Yvonne L., 959 F.2d at 894 (quoting Youngberg, 457 U.S. at 321-22). Similarly, the district court in LaShawn A. observed:
As the Youngberg decision recognizes, the rights of a person in the civil custody of the state are greater than the rights of a person in the state's criminal custody. The foster children that make up the plaintiff class in this case have done society no wrong and they deserve no punishment. It would be inappropriate to force them to endure constitutional deprivation absent a showing of "deliberate indifference" by their caretakers. At the same time, it would be inappropriate to hold caretakers liable for constitutional deprivations when those caretakers had exercised their professional judgment in determining the best course of conduct. 762 F. Supp. at 996; see also Braam, 81 P.3d at 859 ("Foster children are entitled to a high standard. Something more than refraining from indifferent action is required to protect these innocents") (citation omitted).
Contrary to State Defendants' argument, the Eleventh Circuit's decision in Taylor does not require application of the deliberate indifference standard in this case. First, the question of the appropriate constitutional standard was not even presented in Taylor. The plaintiff in that case never raised the professional judgment standard but relied from the outset on a claim that the defendants were liable for deliberate indifference under the reasoning employed in Estelle. Taylor, 818 F.2d at 793. Thus, the court of appeals did not consider the professional judgment standard but simply applied the standard presented by the plaintiff.
None of the other cases cited by State Defendants held that deliberate indifference, rather than professional judgment, was the appropriate standard to apply in the foster care setting. Instead, as in Taylor, those courts simply applied the standard presented to them by the parties. One court explicitly qualified its decision by pointing out that it had not been asked to consider a professional judgment standard. Nicini v. Morra, 212 F.3d 798, 811 n. 9 (3rd Cir. 2000).
Second, unlike Taylor, plaintiffs in this case are not seeking money damages from individual officials but only injunctive relief. In damages actions, "a deliberate indifference standard may be warranted due to the chilling effect that an unfavorable judgment may have on municipal policymakers." LaShawn A., 762 F. Supp. at 996 n. 29. Injunctive relief, on the other hand, is prospective in nature and serves to force appropriate conduct without exacting a financial penalty. Therefore, in injunction actions, the culpability standard can be more precisely calibrated to protect the rights of innocent foster children without also deterring individuals from seeking government employment or chilling their professional conduct.
These distinctions apply equally to the Eleventh Circuit's recent decision in Ray v. Foltz, 370 F.3d 1079 (11th Cir. 2004), which State Defendants cite in a notice of supplemental authority.
Finally, the Taylor court expressly recognized that the deliberate indifference standard defined only the minimum protection to which foster children were entitled: "With contemporary society's outrage at the exposure of defenseless children to gross mistreatment and abuse, it is time that the law give to these defenseless children at least the same protection afforded adults who are imprisoned as a result of their own misdeeds." Id. at 797 (emphasis added). Accordingly, in the context of an injunction action like this one, it is not inconsistent with Taylor to hold that innocent foster children are entitled to greater protection than imprisoned criminals.
Applying the professional judgment standard to the record in this case, the Court finds ample evidence to create genuine issues for trial. Plaintiffs' expert reports, as well as other evidence, are sufficient to create genuine issues as to whether State Defendants exercise reasonable professional judgment to ensure that foster children are safe, that they live in appropriate homes, and that they receive necessary health services and permanency planning services.
As set out in Section II infra, the Court concludes that plaintiffs' expert reports and testimony are admissible.
Specifically, plaintiffs point to evidence that State Defendants substantially depart from minimal professional standards for ensuring foster children's safety by failing to (1) adequately investigate and respond to allegations of abuse, (2) ensure reasonable caseloads for caseworkers, (3) ensure that caseworkers regularly visit foster children to monitor their safety, (4) provide consistent casework services, (5) maintain accurate and timely casework documentation, and (6) adequately screen and approve foster homes.
Plaintiffs also point to evidence that State Defendants have failed to provide a sufficient number and array of placements for foster children, as required by professional standards of care. As a result, the evidence indicates, State Defendants often place children in inappropriate and overcrowded homes, unnecessarily shuffle them from one unsuitable home to another, and overuse institutional placements. In addition, plaintiffs point to evidence that State Defendants fail to provide plaintiff foster children medical, dental, and mental health services as mandated by professional standards of care, and also fail to provide timely case plans and services necessary to facilitate prompt reunification of children with their families or to achieve prompt adoptions.
C. Procedural Due Process
Plaintiffs allege that State Defendants' failure to provide them with safe and appropriate placements and services violates procedural due process by depriving them of liberty interests arising under both federal and state laws. Specifically, plaintiffs rely on rights created by the Adoption Act, 42 U.S.C. §§ 620-628 and 670-679a; the EPSDT Program of the Medicaid Act, 42 U.S.C. §§ 1396a and 1396d; the Multiethnic Placement Act, 42 U.S.C. §§ 671(a)(18), 674, and 1996b; and O.C.G.A. §§ 49-5-12(j), 15-11-13, and 15-11-58.
In its Order of August 18, 2003, the Court held that each of these statutes (with the exception of the Multiethnic Placement Act, which was not addressed) created privately enforceable rights. Kenny A. v. Perdue, 218 F.R.D. 277, 290-95 (N.D. Ga. 2003).
State Defendants argue that this count simply restates plaintiffs' substantive due process claim, and that they are entitled to summary judgment on this claim because there is no evidence that they have been deliberately indifferent to plaintiffs' rights. As discussed above, however, the appropriate constitutional standard is whether State Defendants' conduct substantially departs from accepted professional judgment, and there is ample evidence that satisfies this standard.
State Defendants also argue that there is no evidence that they have deprived plaintiffs of their rights under these statutes without providing adequate procedures. In support of this argument, State Defendants rely on Powell v. Ga. Dep't of Human Resources, 114 F.3d 1074 (11th Cir. 1997). In Powell, the plaintiff alleged that DFCS caseworkers' failure to follow a written Child Abuse Protocol violated his son's procedural due process rights, resulting in the infant's death. Plaintiff argued that state officials "should have provided more staffing, supervision, and training so that neglect of duty would not result from excessive caseloads." Id. at 1082. The court rejected this argument, noting that "we know of no case holding that the Constitution requires a government to provide more personnel or more training in order to reduce the risk of random and unauthorized acts of neglect of duty." Id.
This case, however, is distinguishable from Powell. Here, plaintiffs do not allege injury arising merely from "random and unauthorized" failures of caseworkers to follow established procedures. Instead, they assert that State Defendants' failures to provide safe and appropriate placements and services "constitute a policy, pattern, practice and/or custom that is inconsistent with the exercise of reasonable professional judgment and amounts to deliberate indifference to the serious and constitutionally protected rights and liberty and privacy interests of all Plaintiffs and Class members." (First Am. Compl. ¶ 228.) As outlined above in connection with plaintiffs' substantive due process claim and below in connection with plaintiffs' federal and state statutory claims, the evidence in the record is sufficient to create genuine issues of fact with regard to plaintiffs' claim that State Defendants have systematically failed to protect plaintiffs' rights created under federal and state laws. Accordingly, the Court concludes that State Defendants are not entitled to summary judgment on plaintiffs' procedural due process claim.
D. Equal Protection
African-American plaintiffs claim that their equal protection rights are violated by State Defendants' racially discriminatory "policy, pattern, custom and/or practice of delaying or denying the adoption of African-American foster children . . . by willing and suitable, non-African-American, prospective adoptive parents . . . because the race of the foster child is not the same as the race of the prospective adoptive parents." (First Am. Compl. ¶ 83.) State Defendants contend that the evidence establishes that adoption matches are made without regard to the race or ethnicity of the child or adoptive parent, except in very limited circumstances such as when a child has had extreme negative experiences with racism. In such cases, State Defendants argue, taking race into account is permissible because it is narrowly tailored to serve a compelling interest in protecting and nurturing the child. Finally, State Defendants argue that there is no evidence that their adoption decisions are arbitrary or capricious or made with discriminatory intent.
In response, plaintiffs cite findings by the Department of Health and Human Services' Office of Civil Rights (OCR) that the state is not complying with the Multiethnic Placement Act, which prohibits delaying or denying adoptive placements on the basis of race, as well as evidence that State Defendants have failed to comply with the terms of a voluntary compliance agreement entered into with OCR. Plaintiffs also argue that an inference of discriminatory race matching may be drawn from aggregate adoptions data which shows, for example, that out of 144 African-American children whose adoptions were finalized by Fulton and DeKalb DFCS in 2002, only three were adopted by families with at least one non-African-American parent. Finally, plaintiffs cite evidence that DeKalb DFCS has delayed the adoptions by a non-African-American individual of African-American named plaintiffs Sabrina E. and Korrina E.
The Court concludes that there is sufficient evidence in the record to preclude summary judgment on this claim. As the Eleventh Circuit has noted, in discrimination cases, a party's "true motivations are particularly difficult to ascertain, thereby making such factual determinations generally unsuitable for disposition at the summary judgment stage." Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993);see also id. at 921 ("[T]he grant of summary judgment, though appropriate when evidence of discriminatory intent is totally lacking, is generally unsuitable in Title VII cases in which the plaintiff has established a prima facie case because of the `elusive factual question' of intentional discrimination") (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Here, although there is no direct evidence of discriminatory intent, the Court finds the circumstantial evidence presented by plaintiffs sufficient to create a factual issue requiring trial of this claim.
E. Familial Association
Plaintiffs allege violation of their rights under the First, Ninth, and Fourteenth Amendments "not to be deprived of a child-parent or a child-sibling family relationship absent compelling reasons." (First Am. Compl. ¶ 201.) In its Order denying defendants' motion to dismiss, this Court held that "[t]he constitutional right to family integrity encompasses the right of children in foster care to have meaningful contact with their siblings and parents." Kenny A. v. Perdue, 218 F.R.D. at 296. The Court also found that "once the state has removed a child from his or her family, it cannot deliberately and without justification deny that child the services necessary to facilitate reunification with his or her family, when safe and appropriate, without violating the child's right to family integrity." Id. at 297.
State Defendants ask the Court to reconsider its ruling on the motion to dismiss, citing for the first time Harris v. McRae, 448 U.S. 297 (1980), and Maher v. Roe, 432 U.S. 464 (1977). In those cases, the Supreme Court held that denial of government funding for abortions did not violate a woman's constitutionally protected right to obtain an abortion. The Supreme Court reasoned that, "although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation." Harris, 448 U.S. at 316.
By analogy, State Defendants argue that they are not constitutionally obligated to fund and implement family visitation and reunification for foster children because it was the parents, not the state, that created the need to remove the children from their families in the first place. This argument is without merit. First, in Harris and Maher, it was the woman's indigence, for which the government had no responsibility, that placed an obstacle in the path to her obtaining an abortion. Here, on the other hand, it is the state's act of removing the child from his or her home that interferes with the child's right to family integrity.
Second, State Defendants' argument is inconsistent withTaylor and the numerous other cases cited above, which hold that once state officials remove a child from his or her home, they have a constitutional duty to protect the child from harm. This duty includes an obligation to fund and implement safe and appropriate placements and services that do not substantially depart from accepted standards of professional judgment and do not unnecessarily interfere with the child's rights of familial association.
State Defendants also argue that plaintiffs have not come forward with any evidence that they have violated plaintiffs' constitutional rights to familial association. State Defendants cite the federal Child and Family Service Review July 2001 Final Report, which indicates that in the area of preserving the continuity of family relationships and connections, Georgia's child welfare system is strong in some respects (proximity of foster care placement, preserving connections, relative placement, and relationship of child in care with parents) but needs improvement in others (placement with siblings and visiting with parents and siblings in foster care). Overall, the Report concludes that Georgia's child welfare system "is not operating in substantial conformity" with federal requirements in this area. (State Defs.' Summ. J. App., Ex. M at 2.) According to State Defendants, the Report establishes that "although there will always be an opportunity and need for improvement, Georgia shows a sustained commitment to keeping siblings together in foster care, to facilitating parent-child and sibling visitation, and to preserving family connections." (State Defs.' Mem. of Law in Supp. of Mot. for Summ. J. at 49.)
The Child and Family Services Review was conducted by the Department of Health and Human Services through its Administration for Children and Families, Region IV, to evaluate how Georgia's child welfare system was functioning and to ensure substantial conformity with the state plan requirements found in Titles IV-B and IV-E of the Social Security Act.
In response, plaintiffs cite the report of their case record review expert, which concludes that State Defendants fail to ensure that siblings are placed together or have frequent visitation when separated, fail to ensure frequent parent-child visitation, and fail to provide services necessary to facilitate children's reunification with their parents. Plaintiffs also cite State Defendants' own case record review, which indicates that fewer than 30% (17 out of 58) of Fulton County foster children with siblings in care were living together or had lived together while in foster care, and the testimony of Fulton and DeKalb management staff, which indicates that it is often difficult to place siblings together due to a shortage of appropriate foster homes.
The Court concludes that the evidence is in conflict on this issue, and that summary judgment is therefore inappropriate.
F. Statutory Claims
State Defendants' motion for summary judgment on plaintiffs' statutory claims asks the Court to reconsider its prior ruling that the federal and state statutes relied on by plaintiffs create private rights of action. See Kenny A., 218 F.R.D. at 290-96. State Defendants argue that the existence of a comprehensive federal regulatory scheme precludes the implication of such rights of action. Specifically, State Defendants argue that Georgia's compliance with the statutes on which plaintiffs rely should be evaluated and monitored not through private claims asserted in federal court, but through the Child and Family Services Review (CFSR) process, which is conducted by the Department of Health and Human Services' (HHS) Administration for Children and Families (ACF) pursuant to Part 1355 of Title 45 of the Code of Federal Regulations.
As noted above, the CFSR process evaluates a state's child welfare system to ensure that it is in substantial conformity with the state plan requirements found in Titles IV-B and IV-E of the Social Security Act. The state's system is evaluated in seven systemic areas: (1) statewide information system, (2) case review system, (3) quality assurance system, (4) staff training, (5) service array, (6) agency responsiveness to the community, and (7) foster and adoptive parent licensing, recruitment, and retention. 45 C.F.R. § 1355.33(b)(1) (2003). Also evaluated are seven outcomes in the areas of (1) child safety, (2) permanence, and (3) child and family well-being.
The specific outcomes evaluated are
(i) In the area of child safety:
(A) Children are, first and foremost, protected from abuse and neglect; and,
(B) Children are safely maintained in their own homes whenever possible and appropriate;
(ii) In the area of permanency for children:
(A) Children have permanency and stability in their living situations; and
(B) The continuity of family relationships and connections is preserved for children; and
(iii) In the area of child and family well-being:
(A) Families have enhanced capacity to provide for their children's needs;
(B) Children receive appropriate services to meet their educational needs; and
(C) Children receive adequate services to meet their physical and mental health needs.
45 C.F.R. § 1355.44(b)(1) (2003).
If the CFSR determines that a state is not in substantial conformity in any of these areas, HHS requires the state to develop and submit for approval a mandatory Program Improvement Plan (PIP). The PIP identifies areas in which the state is not in substantial conformity, sets forth goals and the amount of progress achievable within certain time frames, establishes benchmarks that will be used to measure progress, and identifies technical assistance needs. The state must submit quarterly status reports, and the ACF evaluates the PIP at least annually. 45 C.F.R. § 1355.35 (2003). Failure to improve as mandated by the PIP can result in the loss of federal financial assistance. 45 C.F.R. § 1355.36.
In 2001, Region IV of ACF conducted a CFSR of Georgia's child welfare system. The CFSR Final Report dated July 2001 concluded that Georgia's system was deficient in three of the seven systemic areas (statewide information system; service array; and adoptive parent licensing, recruitment, and retention) and in all seven outcome areas. Georgia developed a PIP to address these deficiencies. In 2002, ACF approved Georgia's PIP and suspended the withholding of funds as long as the state was successful in rectifying the areas of non-conformity either through successful completion of the PIP or subsequent review. According to State Defendants, the strategies and benchmarks outlined in Georgia's PIP are precisely the improvements that plaintiffs claim are necessary to remedy the alleged violations of their statutory rights. Since these claims are being addressed in the CFSR process, State Defendants contend it was inappropriate to imply private rights of action.
Finally, even if plaintiffs do have private rights of action under the statutes they cite, State Defendants argue that injunctive relief is neither appropriate nor necessary in this case. Arguing that injunctive relief should be narrowly tailored so as not to intrude unnecessarily on state functions, State Defendants contend that, in light of their efforts to improve Georgia's child welfare system even before this lawsuit was filed, and given their continued efforts to correct past deficiencies pursuant to the CFSR process, an injunction on the federal and state statutory grounds cited by plaintiffs "would be in no one's best interests and inconsistent with the statutory scheme." (State Defs.' Mem. of Law in Supp. of Mot. for Summ. J. at 74.)
In response, plaintiffs argue that the existence of a federal remedial scheme to ensure eligibility for federal funding does not require summary judgment on any of their statutory claims. Plaintiffs contend that the CFSR process and the PIP do not address many of the federal statutory violations at issue and none of the alleged state statutory violations. Moreover, plaintiffs argue, State Defendants' reliance on the PIP as providing an adequate remedy for their alleged statutory violations is misplaced because the evidence shows that they have failed to implement certain of the PIP's key goals, including (1) meeting caseload standards of the Child Welfare League of America, (2) increasing foster homes by 50%, and (3) implementing a statewide automated child welfare information system.
Plaintiffs also argue that the CFSR process has little, if any, relevance to the issues in this case for several reasons. First, the CFSR, conducted in 2001, assessed practices in 1999, not 2004, and State Defendants failed the review. Second, children sampled for the CFSR case file review did not include any children from DeKalb DFCS and only a relative handful of children from Fulton DFCS.
Plaintiffs also cite what they contend is overwhelming record evidence supporting their claims that State Defendants violate their federal and state statutory rights. For example, plaintiffs point to evidence that State Defendants violate plaintiffs' rights under the Adoption Act (1) to have a petition to terminate parental rights filed within statutory time frames; (2) to a systemic review of case plans; (3) to adequate foster care maintenance payments; (4) to have health and educational records reviewed, updated, and supplied to foster parents; and (5) to a child welfare system that has an adequate information system. Plaintiffs also cite evidence that State Defendants violate the EPSDT Program by failing to provide foster children initial medical examinations when they enter care, as well as annual medical and dental check-ups; and that they violate the Multiethnic Placement Act by delaying or denying adoptions on the basis of race. With regard to their state statutory claims, plaintiffs point to evidence that State Defendants violate plaintiffs' rights under O.C.G.A. § 15-11-58 to case plans and permanent placement; under O.C.G.A. § 49-5-12(j) to properly screened and supervised homes; under O.C.G.A. § 15-11-13 to care, protection, and education; and under O.C.G.A. § 20-2-690.1 to schooling.
Finally, plaintiffs argue that State Defendants' challenge to injunctive relief is premature and legally invalid. Whether injunctive relief is appropriate, plaintiffs contend, is a fact-intensive inquiry that cannot be addressed at the summary judgment stage but should be considered by the Court only after hearing all the evidence at trial.
The Court concludes that there is no basis for reconsidering its prior ruling that the federal and state statutes at issue give rise to private rights of action. State Defendants rely onGonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000), but that case has no application here. In Gonzalez, the Eleventh Circuit was confronted with a case where Congress had "left a gap in the statutory scheme" and, as a result, the law was "silent on the precise question at issue. . . ." Id. at 1348 (footnote omitted). In such a situation, the court held, "it is not for the courts, but for the executive agency charged with enforcing the statute . . . to choose how to fill such gaps." Id. at 1348-49 (footnote omitted).
In this case, on the other hand, the statutes involved are not silent on the issues presented. To the contrary, they set out in clear detail the rights and services to which foster children are entitled. See Kenny A., 218 F.R.D. at 290-96 nn. 10-22, 24-27. As a result, the Court has found that the federal statutory provisions in question "are not too `vague and amorphous' to be enforced by the judiciary," and that each of the state statutes at issue "imposes specific duties on State Defendants. . . ." Id. at 292, 294 (quoting Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)). The Court sees no reason to reconsider these findings. Thus, the federal regulatory scheme embodied in the CSFR process does not relieve State Defendants of their obligation to fulfill their statutory duties to plaintiff foster children, nor does it provide a legal excuse for their failure to do so.
Finally, at the very least, the evidence in the record creates genuine issues of fact as to whether State Defendants are fulfilling their statutory duties to plaintiffs. The evidence cited by plaintiffs and summarized above is more than sufficient to preclude summary judgment on these statutory claims. State Defendants' argument that injunctive relief is unnecessary and inappropriate as a matter of law is without merit. The question of the propriety and scope of any injunctive relief can only be addressed by the Court after the plaintiffs have been given an opportunity to prove their claims at trial.
II. Motion to Exclude Reports and Testimony of Plaintiffs' Experts
Plaintiffs have presented the reports and intend to proffer the testimony of four experts: Dr. Peg Hess, John Goad, Jessie K. Rasmussen, and Cathy R. Smith. Dr. Hess, a Professor of Social Work at the University of South Carolina, directed a review of the case files of a sample of Fulton and DeKalb foster children and reported on how frequently children received services and benefits mandated by federal and state law. Mr. Goad, former Chief of Child Protective Services in Chicago and for the state of Illinois, issued a report summarizing the findings of a review conducted by the Juvenile Protective Association of 95 randomly sampled investigative files concerning the alleged abuse or neglect of plaintiff foster children. Ms. Rasmussen, a former head of the Iowa and Nebraska child welfare agencies, evaluated the entire Georgia foster care system as operated in Fulton and DeKalb Counties from a management perspective and issued a report summarizing her findings. Finally, Ms. Smith, former Assistant Commissioner of Tennessee's child welfare agency, reviewed the case files of five named plaintiffs to assess the quality of casework practice provided to these children.
State Defendants seek to exclude the reports and testimony of these experts on four grounds. First, they argue that the experts' reports and conclusions are irrelevant and will not assist the trier of fact because they are based on the assumption that the Youngberg professional judgment standard applies to plaintiffs' substantive due process claims, when in factTaylor's deliberate indifference standard actually applies. Plaintiffs respond that Youngberg provides the appropriate standard in this case and that, in any event, plaintiffs' expert reports and proposed testimony, particularly the reports prepared by Dr. Hess and Mr. Goad, which contain both facts compiled by the experts as well as opinions, are of obvious assistance and relevance in determining liability under either standard.
Second, even applying the professional judgment standard, State Defendants argue that plaintiffs' expert reports and conclusions offer no reliable basis to establish the existence or content of generally recognized professional standards that apply to child welfare practice. In response, plaintiffs argue that each of their experts identify specific standards — including Georgia's own required policies, federal and state law, nationally published standards, academic sources, and the experience and expertise of each expert — with which they each independently evaluated the state's performance and quantified their findings. Consequently, plaintiffs contend, all of their experts' opinions are sufficiently rooted in the knowledge and experience of their areas of expertise and are explanatory or probative of one or more inquiries in dispute.
Third, even if accepted professional standards existed, State Defendants argue that plaintiffs' expert reports and conclusions offer no reliable basis to support any inference that State Defendants departed from such standards to an exceptional degree. Plaintiffs respond that each of their experts defines accepted practice, quantifies the degree to which each type of failure is occurring in the aggregate, and opines that each level of failure is considerable, unreasonable, and substantially violates any recognized standard.
Fourth, State Defendants contend that plaintiffs' expert reports, particularly those of Mr. Goad and Ms. Smith, suffer from gaps in logic, speculation, and subjectivity. In addition, State Defendants challenge the admissibility of Ms. Smith's report in particular on the grounds that its recitation of the case histories of only five children is irrelevant to class-wide issues and is not helpful to the trier of fact. In response, plaintiffs contend that all of these assertions are directed at best to the evidentiary weight of the experts' opinions at trial, not to their admissibility.
In Daubert, the Supreme Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to "ensure that any and all scientific testimony . . . is not only relevant, but reliable." 509 U.S. at 589. This "gatekeeping" obligation applies not only to scientific testimony but to all expert testimony. Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The Daubert court emphasized that "[t]he inquiry envisioned by Rule 702 . . . is a flexible one." 509 U.S. at 594 (footnote omitted). "[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining the reliability of challenged expert testimony." Kuhmo, 526 U.S. at 152. Thus, the trial judge has broad discretion in deciding whether to admit or exclude expert testimony. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (holding that abuse of discretion is proper standard by which to review district court's decision to admit or exclude expert evidence).
In exercising its discretion, the Court is mindful that "[t]he gatekeeper role is not intended to supplant the adversary system. . . ." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311 (11th Cir. 1999). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596. The objective of the Court's inquiry "is to ensure the reliability and relevancy of expert testimony." Kuhmo, 526 U.S. at 152. Accordingly, if an expert's opinion is sufficiently rooted in the knowledge and experience of the relevant discipline and is explanatory or probative of an issue in dispute, it should be admitted as an aid to the trier of fact.
Applying Daubert's principles in this case, the Court concludes that plaintiffs' proffered expert testimony is both relevant and reliable and therefore admissible under Rule 702. First, as discussed in Section I.B. supra, Youngberg's professional judgment standard is the appropriate standard to apply to plaintiffs' substantive due process claims. Therefore, State Defendants' argument that plaintiffs' expert reports and conclusions are irrelevant because they do not address the deliberate indifference standard is without merit.
Second, plaintiffs' experts adequately define acceptable professional standards of child welfare practice. In reaching their opinions, plaintiffs' experts rely on a variety of sources of accepted professional standards, including state law, regulations, and policies; federal law; standards published by the Child Welfare League of America and the Council on Accreditation for Services to Children and Families; performance indicators, outcomes, and systemic factors developed by HHS; academic publications; and their own considerable professional experience. The Court finds that these standards form a reliable basis for evaluating the performance of a state's child welfare system, and that their application to Georgia's system will assist the Court in determining whether State Defendants have violated plaintiffs' rights.
Contrary to State Defendants' argument, nothing in Daubert and its progeny requires the existence of "generally recognized national standards" as a prerequisite to expert testimony on accepted standards in a particular field. (State Defs.' Mem. of Law in Supp. of Mot. to Exclude Reports and Test. of Pls.' Experts at 17.) Taken to its logical conclusion, this argument would effectively destroy plaintiffs' substantive due process rights and permit State Defendants to operate Georgia's child welfare system in complete disregard of any professional standards, no matter how well accepted, so long as no uniform set of national standards had been formally adopted. Clearly, this is not the law.
Third, plaintiffs' experts will properly assist the Court in determining whether State Defendants' practices violate constitutional requirements. Contrary to State Defendants' argument, it is not necessary that plaintiffs' experts precisely define the point at which State Defendants' conduct, either in any given instance or overall, crosses the constitutional boundary so as to constitute "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." Youngberg, 457 U.S. at 322. Whether and when State Defendants' conduct crosses this boundary is an ultimate legal issue to be decided by the Court based upon all the evidence presented at trial. Plaintiffs' experts' opinions regarding the applicable standards governing child welfare practice and State Defendants' current level of performance as measured against those standards will clearly assist the Court in making that determination.
Finally, none of State Defendants' other challenges to plaintiffs' experts requires the exclusion of their reports and testimony. State Defendants' claims that the experts' reports contain "inflammatory rhetoric, unfounded and speculative conclusions, and leaps in logic" are more appropriate subjects for cross-examination than a Daubert motion. (State Defs.' Mem. of Law in Supp. of Mot. to Exclude Reports and Test. of Pls.' Experts at 24.) These arguments, which attempt to show bias or failure to take into account relevant evidence, go to the weight rather than the admissibility of plaintiffs' expert testimony.
Likewise, State Defendants' objection that Ms. Smith's review of only five individual case files is irrelevant to the class-wide issues in this case is without merit. Even though Ms. Smith's report by itself may be insufficient to establish class-wide constitutional violations, it will still assist the Court, in conjunction with all the other evidence to be presented, in understanding how services are provided in the individual setting and how individual children are harmed when appropriate services are not provided.
Summary
For the foregoing reasons, the Court GRANTS State Defendants' motions to exceed page limitations [#329-1, #334-1]; DENIES State Defendants' motion for summary judgment [#243-1]; and DENIES State Defendants' motion to exclude reports and testimony of plaintiffs' experts [#335-1].
IT IS SO ORDERED.