Case 2:11-cv-00084 Document 903 Filed on 07/06/20 in TXSD Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend, Sarah R. §

Stukenberg, et al., §
§
Plaintiffs, §
§
vs. § CIVIL ACTION NO. 2:11-CV-00084
§
GREG ABBOTT, in his official capacity §
as Governor of the State of Texas, et al., §
§
Defendants. §

DEFENDANTS’ VERIFIED OBJECTIONS TO MONITORS’ REPORT

Defendants Greg Abbott, in his official capacity as Governor of the State of Texas,

Courtney N. Phillips, in her official capacity as Executive Commissioner of the Health and Human

Services Commission of the State of Texas 1, and Jaime Masters, in her official capacity as

Commissioner of the Department of Family and Protective Services of the State of Texas

(“Defendants”), hereby file these Verified Objections to the Court Monitors’ Report to the Court

filed June 16, 2020 [ECF 869] (the “Report”) pursuant to FED. R. CIV. P. 53(f)(2).

Since the Court’s 2015 ruling, and since the Fifth Circuit upheld some of the Remedial

Orders set out in the Court’s November 20, 2018 Order [ECF 606] (the “2018 Order”) in July

2019, Defendants have exerted significant efforts to comply with the Remedial Orders and address

the concerns raised by the Court and the Monitors. These efforts include hiring staff, making

significant IT changes, creating and revising policies, and developing better practices. While the

Monitors acknowledge some of these efforts in the Report, they spend much of the Report on what

1
In February 2020, Courtney N. Phillips resigned as Executive Commissioner of HHSC. HHSC’s Acting Executive
Commissioner is Phil Wilson.

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they deem deficiencies in Defendants’ policies, procedures, and conduct. In doing so, the Report

fails to provide an objective analysis of the foster care system, lacks information sufficient to

identify compliance expectations, and, ultimately, impedes Defendants’ desire to work with the

Monitors, Plaintiffs, and the Court to comply with the Remedial Orders and create positive change

in the foster care system. Defendants dispute the conclusions concerning noncompliance reached

by the Monitors in the Report; however, this filing is intended to address deficiencies in the Report

itself in hopes that by addressing these issues, the path towards compliance with the Remedial

Orders will be clear, which is in the best interest of all parties, especially the children and youth in

the foster care system.

I. Objections to Report as a Whole

1. Defendants object to the Report’s failure to identify the requirements,

methodology, or criteria against which the Monitors will measure Defendants’ actions for

compliance with the Remedial Orders set out in the 2018 Order. Specifically, while the Monitors

spend hundreds of pages detailing the information they reviewed and their conclusions based on

that information (often drawn from purported mathematical and statistical analyses), at no time do

the Monitors state the threshold for compliance. As a result, after producing hundreds of thousands

of pages of documents, regularly engaging in communication with the Monitors, making

significant and meaningful changes to their operations, and paying the Monitors nearly $7 million

in fees, Defendants still do not know what standards or benchmarks the Monitors are using to

determine compliance with the Remedial Orders.

2. Similarly, Defendants object to the Monitors’ failure to state, with respect to each

Remedial Order addressed in the Report, whether Defendants are in compliance with or otherwise

meet the requirements of the 2018 Order. Specifically, pursuant to the 2018 Order, the Monitors

are required to “report on Defendants’ compliance in implementing the terms of” the 2018 Order,

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taking “into account the timeliness, appropriateness, and quality of Defendants’ performance” and

provide written reports that “set forth whether the Defendants have met the requirements” of the

2018 Order. See ECF 606 at p. 17. Those reports must “set forth the steps taken by Defendants,

and the reasonableness of those efforts; the quality of the work done by Defendants in carrying out

those steps; and the extent to which that work is producing the intended effects and/or the

likelihood that the work will produce the intended effects.” The Report fails to meet these

requirements.

3. Defendants further object to the Report in that it purports to identify gaps or issues

related to data or information apparently identified months before the Report was filed but that

were not previously raised with Defendants, thereby depriving Defendants of the opportunity to

promptly address those concerns so that substantive issues of compliance could be adequately

addressed in the Report.

4. Similarly, Defendants object to the lack of transparency regarding the

methodologies employed by the Monitors and the validation efforts used to evaluate compliance

with the Remedial Orders as this denied Defendants the reasonable opportunity to address specific

information that may have been instructive to the Monitors or otherwise discuss issues with the

methodology and validation efforts used.

5. Defendants also object to the Report because it fails to apply a consistent or

reasonable time period to the verification data used to substantiate the Monitors’ findings.

Throughout the Report, the Monitors use as little as a month’s worth of data provided by

Defendants on multiple occasions without explaining why the remaining data provided covering

approximately ten months was disregarded. A standard time frame for review that, among other

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things, does not purport to judge Defendants’ actions prior to the issuance of the Fifth Circuit’s

mandate in July 2019 is necessary to properly evaluate compliance with the Remedial Orders.

6. In addition to inconsistent time periods, Defendants also object because the Report

vacillates between using objective data and subjective interviews with little-to-no supporting

explanation for those choices. The Report fails to specify whether and why objective data or

subjective interviews or observations are given more weight, whether subjective interviews or

observations may result in less comprehensive, objective, or accurate analysis, how the Monitors

chose who to interview, and whether the samples selected were statistically valid representations

of the whole relevant population, among other issues.

II. Objections to Specific Parts of Report

A. Section II

7. Defendants object to Section II of the Report regarding Defendants’ data and data

systems because it is irrelevant. Specifically, this section does not relate to any Remedial Order

outlined in the 2018 Order that was upheld by the Fifth Circuit. Instead, the Report attempts to

revive issues raised in Remedial Order Nos. 33 and 34 requiring an integrated computer system

that were invalidated by the Fifth Circuit.

8. Defendants further object to Section II of the Report as it mischaracterizes the data

made available to the Monitors. Specifically, while the Report focuses on complaints about how

Defendants track and compile data, it fails to acknowledge the sheer volume of information

Defendants have provided the Monitors. For example, between November 1, 2019, and May 15,

2020, DFPS produced 85 reports with an estimated 7.2 million data elements and devoted an

estimated 3,000 analyst hours producing reports to the Monitors. Like the Monitors, Defendants

hope that as the parties work out any issues with content or format that these reports will take less

time.

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9. Defendants also object to Section II of the Report because it mischaracterizes the

current state of data production and availability. For example, the Report states that with regards

to Remedial Order No. 1, “DFPS is unable to provide actual training start and completion dates.”

This is factually incorrect. For training reports covering the period of December 2019 forward,

DFPS has provided actual training start dates for all new CVS hires and training completion dates

for all CVS workers, as applicable. The Report also states that with regards to Remedial Order

Nos. 10 and 11, DFPS reported that it could not track investigation timeliness through IMPACT.

This assertion is misleading because it fails to clarify that although DFPS did initially identify a

technical issue in IMPACT that affected reporting regarding one element of timeliness of

completion, it fixed the issue and began providing that element in reports covering the time period

of quarter 2 fiscal year 2020 and forward. Additionally, DFPS is moving away wherever possible

from reporting compliance through case reads, and all elements needed to calculate timeliness of

investigation completion will be included in the quarterly data report provided to the Monitors

along with an indicator for whether the investigation was completed timely beginning July 15,

2020. For graduated caseloads in March 2020 onward, DFPS has also provided the Monitors with

the number of days each worker is above graduated caseload guidance, which is not accurately

reflected in the Report.

10. Finally, Defendants also object to Section II of the Report because it blames

Defendants for connectivity issues without addressing other variables, such as the networks,

infrastructure, and laptops of the Monitors, that may have contributed to the delay; the Report also

neglects to acknowledge that when the Monitors reported technological difficulties, Defendants

had IT and other staff available on standby to quickly work through those issues.

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B. Section III

11. Defendants object to Section III of the Report on the grounds that it is misleading

regarding the efforts Defendants undertook to implement the Remedial Orders addressed in this

Section. Specifically, the Report fails to acknowledge that DFPS created a screening unit on

February 10, 2020, to address issues with consistency or quality in CCI’s screening process. 2 The

Report also fails to acknowledge that DFPS hired and onboarded 20 new investigators and is nearly

complete with the backlog reduction project it proactively undertook in order to improve timeliness

in these investigations. By failing to acknowledge these actions, the Report is misleading and

creates incorrect assumptions regarding Defendants’ conduct.

12. Defendants object to Section III(A) of the Report, related to Remedial Order No. 3,

because it improperly proffers a legal analysis regarding the alleged conflict between the Texas

Administrative Code and DFPS’s Child Care Licensing Policy and Procedures Handbook.

13. Defendants further object to Section III(A) of the Report, related to Remedial Order

No. 3, as its improper analysis of the Texas Administrative Code actually refers to the wrong

provisions. Specifically, the Report refers to 40 Tex. Admin. Code §700.507 (e)(1)(A)-(C) as

applying to CCI, when by its plan language, that chapter applies to Child Protective Services. 3 The

Report wholly fails to reference Chapter 745 of Title 40 of the Texas Administrative Code, where

rules related to CCI have historically been found. Finally, even under §700.507, a provision that

Defendants maintain does not apply to CCI, the construction applied in the Report entirely

2
As the Monitors are aware, the first report from this unit is due July 15, 2020.
3
Prior to 2017, Child Protective Investigations (CPI) were a part of CPS. Following changes made during the 85th
Regular Session of the Texas Legislature, CPI is part of a consolidated Investigations Division. See, e.g. TEX.
HUMAN RES. CODE §§40.042 and 40.0505.

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disregards that the rule lists various authorized responses and, instead, focuses only on the response

for a thorough investigation.

14. Defendants object to Section III(A) of the Report, related to Remedial Order No. 3,

as vague, misleading, and failing to comply with the requirements of the 2018 Order. Specifically,

the Report criticizes how Defendants conducted investigations and reached dispositions without

providing support for the stated conclusions or other information Defendants could utilize in

improving their investigations. This is just one way that Defendants have been excluded from the

investigative and drafting process such that they have been deprived of the opportunity to

specifically address conclusions stated in the Report.

15. Defendants object to Section III(A) of the Report, related to Remedial Order No. 3,

of the Report because it is based on the false premise that the 2018 Order against which

Defendants’ conduct is judged prescribes hold time limits related to Statewide Intake and fails to

acknowledge that DFPS satisfies the threshold set by the Texas Legislative Budget Board.

16. Defendants object to Section III(B) of the Report, related to Remedial Order Nos.

5 through 11, 16, and 18, and Section III(D) of the Report, related to Remedial Order No. B-5, as

it violates the terms of the 2018 Order by failing to acknowledge that Defendants have

implemented additional reporting capabilities into their electronic systems such that they are better

able to respond to the Monitors’ requests for information. For example, in addition to failing to

acknowledge that DFPS hired and onboarded 20 new investigators and is nearly complete with the

backlog reduction project described in Paragraph 11, the Report criticizes Defendants’ inability to

supply the information regarding investigation timelines related to Remedial Order Nos. 10 and

11 without also acknowledging that Defendants are now or soon will be producing reports with

increased functionality to address issues raised by the Monitors. Further, on December 19, 2019,

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IMPACT automation of caseworker notification of abuse and neglect allegations was deployed so

that caseworkers are now automatically notified, and an alert is generated when a child is involved

in an intake. 4 The December 2019 investigation data the Monitors reviewed to assess timeliness

of caseworker notification for Remedial Order No. B-5 may not include investigations which

occurred after the IMPACT changes deployed. Additionally, the Report fails to acknowledge that

DFPS created a Quality Assurance Team that began formal case reviews in March 2020. Therefore,

with respect to Remedial Order Nos. 5 through 11, 16, 18, and B-5, the Report relies on incomplete

records, rendering the conclusions reached therein unreliable.

17. Defendants object to Section III(E) of the Report, related to Remedial Order No.

37, because it improperly attempts to impose requirements that are not supported by the 2018

Order. Specifically, Section III(E) purports to require that DFPS: (1) screen the report after it is

received from Statewide Intake; (2) notify the caseworker and caseworker’s supervisor regarding

an abuse and neglect referral for a foster home where a PMC child is placed; (3) complete a

thorough review of the home’s referral history and assess for any concerns for the child’s safety

or well-being; and (4) have both the caseworker and supervisor review the history and assess

responsive action within the same 48-hour period. While Defendants do not contest that Remedial

Order No. 37 requires DFPS provide the requisite notice to a child’s caseworker and that

caseworker’s supervisor within 48 hours of an abuse and neglect referral regarding a foster home,

the plain language of Remedial Order No. 37 does not require the additional activities referenced

in the Report within that same timeframe. Despite this, the Report applies the 48-hour deadline to

all these activities in evaluating Defendants’ compliance with this provision, ignoring the plain

language of Remedial Order No. 37, which Defendants object to as improper. Additionally,

4
DFPS has built the needed data warehouse tables and corresponding data report and will be able to report on the
notification date and time beginning with reports submitted to the Monitors on July 15, 2020.

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although Defendants provided detailed information in January 2020 regarding the processes and

corresponding timelines, no concerns were raised about how the Defendants’ were complying with

Remedial Order 37 until the issuance of the Report, which is another example of Defendants being

denied the ability to address those concern so that substantive issues of compliance could be

adequately addressed in the Report.

C. Section IV

18. Defendants object to Section IV(C) of the Report, related to Remedial Order Nos.

35 and A-4, and Section IV(D) of the Report, related to Remedial Order Nos. B-1, B-2, B-3, and

B-4, because it purports to assess caseloads by counting primary and secondary assignments, as

such an approach conflates workload analysis with caseload guidelines, which is contrary to the

language in the Remedial Orders and the Court’s order dated December 17, 2019 [ECF 772].

19. Defendants object to Section IV(D) of the Report, related to Remedial Order Nos.

B-1, B-2, B-3, and B-4, because it fails to satisfy the requirements of the 2018 Order in that it

relies upon data that pre-dates the effective date of Remedial Order Nos. B-3 and B-4 and fails to

acknowledge the progress made by Defendants since the agreed caseload guidelines were made

effective.

20. Defendants object to Section IV(D) of the Report, related to Remedial Order Nos.

B-1, B-2, B-3, and B-4, because it refers to or treats caseload guidelines as a cap or strictly enforced

range, which contradicts the Court’s order dated December 17, 2019 [ECF 772].

21. Defendants object to Section IV(D) of the Report, related to Remedial Order No.

B-1, B-2, B-3, and B-4, because it includes supervisor caseloads when such caseloads are not

included in the plain language of Remedial Order Nos. B-1, B-2, B-3, or B-4.

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D. Section V

22. Defendants object to Section V(A) of the Report, related to Remedial Order No.

32, and Section V(C) of the Report, related to Remedial Order No. 4, because it improperly

attempts to redefine the requirements of those Remedial Orders. Specifically, the Report references

a third-party report commissioned by the Monitors to examine Defendants’ training on child-on-

child sexual abuse, which relates to Defendants’ efforts to “create a clear policy on what constitutes

child on child sexual abuse” and “ensure that all caseworkers and caregivers are trained to

recognize and report sexual abuse, including child-on-child sexual abuse,” as required by

Remedial Order Nos. 4 and 32. See 2018 Order at p. 2, 6. However, the Report, in summarizing

information from the third-party report, criticizes Defendants for not focusing on prevention of

child-on-child sexual abuse in the training. While Defendants appreciate and take into

consideration the recommendations provided by the Monitors, Defendants also object to the

Monitors’ disregard of the actual language in Remedial Order Nos. 4 and 32 and their failure to

evaluate Defendants’ compliance with that actual language.

23. Defendants object to Section V(B) of the Report, related to Remedial Order Nos.

23, 24, 28, and 30, because it violates the 2018 Order by failing to consider Defendants’ ongoing

efforts to document in IMPACT a child’s history of sexual aggression and victimization, including

dedicating numerous internal IT resources and working with a third party IT vendor to prioritize

IMPACT enhancements such as creating IMPACT pages, indicators, and auto-filling forms. The

Report also does not fully take into account that Defendants have dedicated resources to

developing policy, training staff, and conducting case reads to ensure and validate systematic

documentation.

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24. Defendants further object to Section V(B) of the Report, related to Remedial Order

Nos. 23, 24, 28, and 30, because the findings contained therein are based on the Monitors’ limited

review of files, in contravention of the requirements of the 2018 Order. Specifically, since

November 2019, DFPS has provided a quarterly PMC child listing report that notes whether a

PMC child had a sexual abuse or aggression history. Even the Report’s limited independent

validation efforts concluded that 91% of the files the Monitors reviewed included the information

indicated and only 9% did NOT have the information indicated, a number that has decreased as

DFPS made efforts to update that information in IMPACT.

25. Defendants also object to Section V(B) of the Report, related to Remedial Order

Nos. 23, 24, 28, and 30, because the findings made in the Report are based, at least in part, on on-

site or IMPACT case reviews that occurred prior to the deployment of the sexual victimization

history page in December 2019.

26. Defendants object to Section V (D) of the Report, related to Remedial Order Nos.

25 through 27, 29, and 31, because, in contravention of the 2018 Order, it fails to consider

Defendants’ ongoing efforts to improve forms and procedures to ensure caregivers receive

information regarding children’s history of sexual victimization or aggression.

27. Defendants also object Section V (D) of the Report, related to Remedial Order Nos.

25 through 27, 29, and 31, because it improperly restricts validation activities regarding caregiver

interviews to General Residential Operations (GRO) employees. As notifications of a child’s

history of sexual victimization or aggression are made to GRO directors and administrators and

not GRO direct care staff, the Report fails to meet the requirements of the 2018 Order by wholly

failing to address notifications to GRO directors and administrators in evaluating compliance.

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28. Defendants further object to Section V (D) of the Report, related to Remedial Order

Nos. 25 through 27, 29, and 31, in that it characterizes gaps in notification as equating to

noncompliance with the applicable Remedial Orders, particularly when the methodologies and

validation efforts were unknown to Defendants until the Report was issued.

29. Defendants further object to Section V(E) of the Report, related to Remedial Order

Nos. A-7 and A-8, because it bases its compliance analysis, at least in part, on whether subject

operations have identical awake-night supervision policies, when no such requirement is imposed

by the Remedial Order.

30. Defendants also object to Section V(E) of the Report, related to Remedial Order

Nos. A-7 and A-8, on the grounds that the conclusions in the Report are based on unreliable data.

Specifically, it appears the Report largely relies on findings from interviews the Monitors

conducted at only four facilities between December 2019 and February 2020, during which the

Monitors interviewed a total of just 17 awake-night staff members. The Report fails to explain

how using such a small sampling could yield statistically relevant information or why subjective

interview information spanning a limited time period and derived from relatively few interviews

may outweigh objective data to which the Monitors had access, including a large number of forms

from other operations.

31. Defendants object to Section V(E) of the Report, related to Remedial Order Nos.

A-7 and A-8, because it purports to hold Defendants in non-compliance based on the census sheets

brought to 24-hour awake supervision monitoring, which is not supported by the plain language

of these Remedial Orders and related orders from the Court. As the Monitors are aware,

Defendants must identify what operations house PMC children to determine whether the 24-hour

awake night supervision requirements apply to them and use near-real time census data for this

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limited purpose. The census data must necessarily be pulled in advance of the monitoring visits

and was never intended to also be used for real-time reflection of where specific children were on

the date of the monitoring visits, except to reflect the children who were in the placement on the

date of the visit. Defendants object to the Report’s apparent reliance on allegedly outdated census

sheets in evaluating Defendants’ performance, particularly when Defendants have met the

elements of the Court’s Order of November 7, 2019 [ECF 725], which requires Defendants to

provide, among other things, the names and number of PMC children in the placement on the date

of the visit; Defendants continue to provide this information in its forms when making 24-hour

awake night supervision monitoring visits.

E. Section VI

32. Defendants object to Section VI(A) of the Report, related to Remedial Order No.

22, in that it incorrectly states that HHSC has not adopted a formal policy for extended compliance

review. In fact, that policy was published in May 2020. 5

33. Defendants further object to Section VI(A) of the Report, related to Remedial Order

No. 22, on the grounds that the Report incorrectly states that an extended compliance history

review is required prior to an investigation. The plain language of Remedial Order No. 22 requires

that extended compliance history reviews be considered during placement inspections; however,

the Report discusses data related to investigations rather than inspections.

34. Defendants object to Section VI(A) of the Report, related to Remedial Order No.

22, because it uses an improper data timeframe as the basis for its analysis. Specifically, the Report

acknowledges that on October 7, 2019, the Monitors clarified Defendants’ obligations under

5
See https://hhs.texas.gov/laws-regulations/handbooks/cclpph/4000-inspections#4143; https://hhs.texas.gov/laws-
regulations/handbooks/cclpph/4000-inspections#4143_1; https://hhs.texas.gov/laws-
regulations/handbooks/cclpph/4000-inspections#4143_2.

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Remedial Order No. 22 but then proceeds to evaluate Defendants’ performance under a stated

timeframe that starts immediately on October 7, 2019 and does not allow time for Defendants to

actually implement Remedial Order No. 22 in accordance with these clarifications.

35. Defendants also object to Section VI(A) of the Report, related to Remedial Order

No. 22, in that it misstates the content and requirements of Field Communication #271, which

requires the extended compliance history review be documented in its entirety within 24 hours of

completing the inspection; it does not, as stated in the Report, require a second summary.

36. Defendants further object to Section VI(A) of the Report, related to Remedial Order

No. 22, because, in contradiction of the requirements of the 2018 Order, it criticizes Defendants’

conduct based on case reviews without providing information regarding what cases were included

in the sample selected by the Monitors or what process the Monitors employed to conduct their

case reviews, again depriving Defendants of the opportunity to specifically address the conclusions

stated in the Report.

37. Defendants also object to Section VI(A) of the Report, related to Remedial Order

No. 22, in that it incorrectly concludes that failure to document the extended compliance history

review before the inspection date necessarily means the reviews are not completed by the

inspection date. Rather, inspectors are instructed to conduct the review prior to the inspection and

have 24 hours after completing the inspection to document their review and assessment.

38. Similarly, Defendants object to Section VI(A) of the Report, related to Remedial

Order No. 22, because it incorrectly concludes that blank spreadsheets included in data produced

by Defendants indicated a failure to produce necessary information, as blank spreadsheets

frequently indicate there were no citations to report.

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39. Defendants object to Section VI(A) of the Report, related to Remedial Order No.

22, because the conclusion regarding the number of inspectors that “understood the purpose or

process for compiling and using the information required by the extended compliance history

review” is based on the Monitors’ subjective assessments and interpretations of certain inspectors’

responses to questioning during limited interviews, which does not meet the requirements of the

2018 Order.

40. Defendants object to Section VI(B) of the Report, related to Remedial Order Nos.

12 through 14, because it improperly attempts to apply the requirements of these Remedial Orders

to HHSC. Specifically, Remedial Order Nos. 12 through 14 concern abuse and neglect

investigations, which, by statute and agency policy, are handled by DFPS. See TEX. GOVT’ CODE

§531.02013, amended by House Bill 5 (85th Leg., 2017-18 Session) and RCCL/CCR’s Child Care

Licensing Policy & Procedures Handbook §§ 6110 (Types of Investigations), 6231.1 (Intake

Reports to be Investigated by Licensing), 6231.2 (Intake Reports to be Investigated by DFPS as

Abuse, Neglect, or Exploitation), and 6280 (Referring a Report of Abuse, Neglect, or Exploitation

for Investigation When New Allegations are Received During an Investigation).

41. Additionally, Defendants object to Section VI(B) of the Report, related to Remedial

Order Nos. 15 through 19, to the extent it purports to evaluate HHSC based on failure to produce

documentation related to timeliness of investigation completion, documentation, and notification

letters to referents in abuse and neglect investigations, as such investigations are conducted by

DFPS and not HHSC. HHSC has nothing to produce to the extent the Remedial Orders require

production of data pertaining to DFPS activities.

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42. Defendants further object to Section VI(B) of the Report, related to Remedial Order

Nos. 18 and 19, because it does not account for investigations where notification to the reporter

was not required.

43. Defendants object to Section VI(C) of the Report, related to Remedial Order No.

20, as the procedures cited within the Report have been replaced and are no longer relevant to the

Remedial Orders. Specifically, the Court adopted a process for heightened monitoring in its order

dated March 18, 2020 [ECF 837], and the Report does not purport to assess compliance under this

new process.

44. Defendants also object to Section VI(C) of the Report, related to Remedial Order

No. 20, because it incorrectly references capacities for CPAs, as those operations do not have

capacities.

45. Defendants further object to Section VI(C) of the Report, related to Remedial Order

No. 20, because it applies faulty methodology to determining when operations would be subject

to heightened monitoring. This includes (1) using an average rate derived from data from

September 2014 through March 2020, which is more than the five-year period required by the

Court’s March 18, 2020 Order; (2) failing to consider performance in each year separately as

required by the March 18, 2020 Order; (3) considering only medium-high and high deficiencies

while excluding medium deficiencies in contravention of the March 18, 2020 Order; (4) failing to

break down GROs by service type as required by the March 18, 2020 Order; and (5) failing to

exclude operations who are not contracted with DFPS or a Single Source Continuum Contractor.

46. Defendants object to footnote 705 in Section VI(C) of the Report, related to

Remedial Order No. 20, as it cites to the wrong provision and conflates risk analysis with

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enforcement recommendation and risk assessments done during an abuse and neglect

investigation.

47. Defendants further object to Section VI(C) of the Report, related to Remedial Order

No. 20, as it is based on a logical fallacy. Specifically, the Report purports to identify a discrepancy

between the number of facilities with deficiencies over the state average and the number of actions

taken by Defendants. However, as by definition a significant number of facilities will be above the

average, the Report incorrectly relies on a non-existent statistical guarantee that the number of

deficiencies above the state average necessarily results in child-safety concerns or other concerns

necessitating intervention that are not being addressed.

48. Defendants also object to Section VI(C) of the Report, related to Remedial Order

No. 20, as it fails to consider the various ways Defendants may address issues with an operation,

which results in misleading analysis and, ultimately, improper conclusions regarding Defendants’

conduct.

F. Section VII

49. Defendants object to Section VII of the Report on the grounds that the Report fails

to identify what Remedial Order(s) this section purports to evaluate. As Defendants have

previously communicated to the Monitors, the loss of K.C., C.G., and A.B. is tragic. When any

tragic outcomes are seen, Defendants assess what led to those outcomes and try to learn to inform

ongoing efforts to support the safety of children and youth in care. The investigations into these

cases are ongoing at this time. 6

6
The investigation into A.B.’s death is being handled by Child Protective Investigations (CPI) and not RCCI, as the
child was in an unlicensed kinship placement.

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III. Conclusion

Defendants submit these objections to the Report and request they be sustained, and for

such other relief, in law or in equity, to which Defendants may be entitled.

Respectfully submitted.

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

DARREN L. MCCARTY
Deputy Attorney General for Civil Litigation

THOMAS A. ALBRIGHT
Chief, General Litigation Division

/s/
ANDREW B. STEPHENS
Assistant Attorney General
Texas Bar No. 24079396
Southern District No. 1385273
CHRISTOPHER D. HILTON
Assistant Attorney General
Texas Bar No. 24087727
Southern District No. 3029796
KIMBERLY GDULA
Assistant Attorney General
Texas Bar No. 24052209
Southern District No. 10092074

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120; (512) 320-0667 FAX

ATTORNEYS FOR DEFENDANTS

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 Case 2:11-cv-00084 Document 903 Filed on 07/06/20 in TXSD Page 19 of 19

CERTIFICATE OF SERVICE

I hereby certify that on July 6, 2020, a true and correct copy of the foregoing document has

been filed in accordance with the Electronic Document Filing System of the Southern District of

Texas, thus providing service to all participants.

/s/
KIMBERLY GDULA
Assistant Attorney General

19