Judge faults District's handling of child welfare case

By Henri E. Cauvin
Washington Post Staff Writer
Tuesday, April 6, 2010

A federal judge on Monday found D.C. Mayor Adrian M. Fenty (D) in contempt of court for his administration's "blatant disregard" of its obligations in a long-running class-action lawsuit over the city's child welfare agency.

U.S. District Judge Thomas F. Hogan, who has overseen the lawsuit since it was filed in 1989, said the District's approach to the case is not serving anyone's interest, least of all the people in the city's child welfare system.

"The contumacious posture of District officials has become a troubling theme here," Hogan wrote in his 46-page opinion. "Intransigence may be a nominal improvement from indifference, but it is still unacceptable in this context."

In a statement issued by the mayor's office, D.C. Attorney General Peter Nickles said the administration does not agree with the court's decision and will appeal.

The District has been moving aggressively to end the lawsuit and other long-running class actions involving the mental health and developmental disabilities agencies and the special-education system, and the judge's words were a barely veiled shot at Nickles.

For years, as a lawyer in private practice, Nickles worked on behalf some of the plaintiffs with class-action suits against the city. But since joining the administration, he has made ending the suits a top priority, an effort that has taken on increased urgency as the District copes with budget cuts across the government.

Although Hogan's opinion is not binding on the other class-action cases involving the District, the decision is a setback to the city's legal strategy, and in this case came with the added bite of contempt.

In holding the mayor and the District in civil contempt, the judge faulted Fenty for failing to consult with the court monitor and the plaintiffs on the selection of a new child welfare director last year and the District for failing to seek the court monitor's approval for a key piece of its reform plan.

The city had agreed to the conditions in the aftermath of the case of Banita Jacks, convicted of killing her four daughters and living with their bodies for months. But in the end, the District complied with neither obligation. It did nothing more than call the plaintiffs to tell them that Roque Gerald would be the mayor's nominee to run the Child and Family Services Agency, and it submitted a proposed plan that was "little more than an outline," causing the court "to again question whether the defendants genuinely intend to cooperate," the judge wrote.

Nickles and his lawyers have said the problems that prompted the original suits in the 1970s and 1980s have long since been corrected, and they say a Supreme Court decision last year in Horne v. Flores mandated courts to bring the cases in the District to a swift end.

Hogan, while acknowledging the significance of the decision in Horne and the relative progress of the District's child welfare system over the past two decades, rejected the city's assertions that it had met the tests set by the Supreme Court. The city is not in compliance with the child welfare statutes, Hogan said, nor have circumstances changed so significantly to warrant modifying the court's orders. And, the judge said, the District has not shown that the court's orders present an economic hardship.

It was more than a year ago that the District embarked on its current effort to end the last of the class-action cases that have defined social services in the city for more than a generation. When it filed its motion in the child welfare case in February 2009, it had been barely a year since the deaths of Jacks's children stunned the city. The case revealed an agency still struggling to safeguard children, and the CFSA was inundated with new reports of abuse and neglect.

In his opinion Monday, the judge questioned the District's decision to seek an end to the class action even as the agency coped with the fallout from the Jacks case. "By all accounts, CFSA largely fell to pieces in the aftermath of that discovery," Hogan writes. "Undoubtedly, CFSA has taken measures to buttress reforms. But the defendants have not illustrated any, at least not in a manner that inspires enough confidence to support a conclusion that the agency's progress is 'durable and self-sustaining.' "

Since the Horne decision in June, local governments have been citing the opinion in their efforts to end big class-action cases, but few jurisdictions have been as aggressive as the District, which for decades has been dogged by lawsuits aimed at reforming dysfunctional agencies and institutions. Led by Nickles, the District has filed "Horne motions" in the child welfare case, now known as LaShawn v. Fenty, as well as in cases involving the Department of Mental Health, the Department on Disabilities Services and D.C. Public Schools.

With his opinion in LaShawn on Monday, Hogan is the first federal judge in the District to weigh in on the issue, which has been closely watched by local government and public-interest lawyers, and his reasoning will be carefully analyzed by both sides as they await decisions in the other cases.

Marcia Robinson Lowry, lead lawyer for the plaintiffs and executive director of Children's Rights, said that in LaShawn the District tried to take Horne too far.

Rather than fighting the court, she said, the city should focus on fixing the problems. "The basic issue is that the city hasn't done what it has to do," Lowry said. "The court order would be over if the city were in compliance to its obligations to its children."

© 2010 The Washington Post Company