Well, that took a bit — due almost exclusively to the likely professional misconduct of Trump controlled counsel Sarah Fabian — but the solitary confinement of children in private, for profit (likely Trump donor controlled), unlicensed facilities… is at an end.

The able USDC Judge Gee ordered it (18 pages) effective immediately — with a stay to September 15, 2020 — thus:

…[M]ultiple legal services providers attest that DHS summarily re-designates minors from Title 42 to Title 8 custody, with no explanation given, and perhaps for no other reason than that counsel has appeared to advocate on the child’s behalf. See Nagda Decl. at ¶ 32 [Doc. # 920-4] (“We are not aware of any reason for the children’s ‘re-designation’ other than our efforts to notify DHS that we were aware of the child’s presence in DHS custody.”); Galindo Decl. at ¶ 5 [Doc. # 897-3] (“[E]very time we have contacted the government about a specific child who had not yet been removed, the government has removed that child from the Title 42 Process.”); Odom Decl. at ¶ 19 [Doc. # 920-3] (“In almost every case, our intervention has succeeded in officials reprocessing the children under Title 8, rather than Title 42[.]”); Galindo Decl. at ¶ 3 [Doc. # 920-7] (“As of August 13, 2020, the U.S. government has transferred at least 44 unaccompanied children out of the Title 42 process and into ORR care as a result of our efforts.”).5 CDC appears to have no role in this process. See Nagda Decl. at ¶ 33 (“[W]e have never interacted with a CDC representative in any capacity[.]”); Seaton Decl. at ¶ 16 [Doc. # 920-5] (“I did not interact or communicate with any representatives from the CDC during my representation of [a minor in Title 42 custody].”). In July 2020, 46 minors were reprocessed from Title 42 to Title 8 custody….

DHS also has complete control over where and under what conditions to detain minors under Title 42, including over the decision to house them in hotels. The hoteling operation is managed by the Juvenile and Family Residential Management Unit of ICE, which has hired a contractor to run the facilities on the ground, though ICE “oversees all aspects of the operations.” See Harper Decl. at ¶¶ 1–3, 11 [Doc. # 925-1]. CDC appears to have no role in the process. See id. ICE feeds, clothes, and provides for the hygiene of the minors, with apparently no input from CDC. See id. at ¶¶ 13–18. ICE even handles medical care for the minors, see id. at ¶ 20, notwithstanding CDC and HHS’s expertise in the field. In other words, DHS maintains “the right and the responsibility to make the decisions relating to the health, education, and welfare of [the] child.” Cal. Fam. Code §§ 3003, 3006 (definition of legal custody in the family law context).

Finally, DHS has wide discretion to determine when and whether minors held under Title 42 leave their custody. According to the Independent Monitor, the amount of time minors spend in hotels under Title 42 custody varies widely, with no apparent methodology and no formal limits on the length of stays. August 26 Interim Report at 16–19. There is no indication that CDC plays any role in deciding when minors’ custody with DHS ends and they are ultimately expelled from the country. DHS retains plenary authority to make this “major decision” affecting the child’s life….

The Flores Agreement requires that, if there is no qualified adult or entity that can take custody, DHS must transfer the minor to a “licensed program” within three days of their arrest — or, in cases of an “emergency or influx,” “as expeditiously as possible.” FSA at ¶¶ 12, 19. Licensed programs are those that are “licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children.” Id. at ¶ 6.

There is no dispute that hoteling is not a licensed program. DHS’s contractor, MVM, is not licensed by a state agency to provide care for children. The hoteling also does not meet a number of requirements of licensed programs under the Agreement, including providing an individualized needs assessment, educational services, daily outdoor activity, and counseling sessions, among others….

[T]he Court finds Defendants have materially breached their duty under Paragraphs 12 and 19 to place minors in licensed facilities as expeditiously as possible….

The Independent Monitor and Dr. Wise have raised concerns with this lack of qualified, specialized supervision, especially for younger, unaccompanied children. August 26 Interim Report at 19–20; July 22 Interim Report at 17, 19. The Court agrees. Children as young as 10 are left alone with an adult who has no qualifications or training in childcare. Defendants offer no formal protocols for how MVM Specialists are to adequately care for unaccompanied minors, other than vague assurances that they “interact” with the children by playing games or turning on the TV. There appear to be no separate standards for how 10-year-olds are cared for compared to 17-year-olds, despite the significant developmental differences and “particular vulnerability” of younger children. See July 22 Interim Report at 19 (“It is also important to recognize that a detention experience need not require mistreatment to be traumatic for a young child.”). Put simply, Defendants’ purported “list of amenities is not a system of care for children of different ages and developmental stages.” August 26 Interim Report at 21….

Moreover, oversight of the hoteling program is vague and minimal. MVM “quality control compliance specialists” are on site, but Defendants give no indication as to whether they have formal qualifications or follow specific procedures. See Harper Decl. at ¶ 5. ICE personnel are physically present at one hotel, and “regularly visit” the others “to ensure compliance,” but again, Defendants provide no information about their qualifications or procedures — or indeed, even what “compliance” looks like. See id. at ¶ 11. The only “independent” oversight consists of ICE’s contractor conducting “virtual” inspections, which have occurred in all three cities but not necessarily in all hotels. Defendants do not provide any details as to these inspections….

On balance, the Court finds that the hotel program is not safe with respect to preventing minors from contracting COVID-19 or providing the type of care and supervision suitable for unaccompanied minors…

[There] is no excuse for DHS to skirt the fundamental humanitarian protections that the Flores Agreement guarantees for minors in their custody, especially when there is no persuasive evidence that hoteling is safer than licensed facilities. While the legality of the Closure Order generally is beyond the scope of this Court’s jurisdiction, the Court is obligated to ensure that minors in DHS custody are not left in a legal no-man’s land, where no enforceable standards apply. Defendants may not exploit Title 42 to send children in their legal custody “off into the night.” Flores v. Sessions, 862 F.3d at 878 n.17 (quoting Reno v. Flores, 507 U.S. 292, 295 (1993)).

In light of the foregoing, Plaintiffs’ motion to enforce the Flores Agreement is GRANTED. The Court hereby ORDERS as follows:

1. All minors detained in the legal custody of DHS or ORR pursuant to Title 42 are Class Members as defined by Paragraph 10 of the Flores Agreement. Defendants shall comply with the Agreement with respect to such minors to the same degree as any other minors held in their custody.

2. Implementation of this Order shall be stayed until September 8, 2020. DHS shall cease placing minors at hotels by no later than September 15, 2020….

. . .Plaintiffs’ counsel shall be permitted to visit any facility where minors in Title 42 custody are held, and to meet with any minor held in Title 42 custody….

Have a safe, quiet, socially-distanced Labor Day, one and all. Sanity is making a comeback. Smiling… as seven passed, come Sunday morning….

नमस्ते

It is rather astonishing that I will now need to mail this post to the DC Bar and the California Bar, as well as to the US District Court in Los Angeles. . . but I do intend to do so.

Under long-standing California child welfare rules, and federal ones, to boot — lawyers who become aware of substantial dangers to the health, safety and welfare of minor children are automatically charged with heightened duties of diligence and disclosure. This is doubly true of all government lawyers — as they are charged with representing the public’s interest in among other things protecting children’s welfare.

So it is that I have come to the conclusion that Sarah Fabian, based on her admissions in open court, on August 7, 2020 — in the Flores matter, is aware that her client, the US government, is intentionally violating multiple laws and federal court orders, in its continued unlawful detention — often in degradingly unsanitary, inhumane or torturous conditions of confinement — of little children. As such, the rules of professional conduct, in Massachusetts (her jurisdiction of first bar admission), DC (where her current office is located), and California — where she’s admitted by leave of the able USDC Judge Dolly Gee, to litigate in the Flores matters, pro hac vice. . . all now would seem to require her withdrawal — from this case.

In any setting where children are in danger, when any attorney represents any party — it is incumbent on that attorney to make a report to the court (after advising her client of this duty of hers, and giving the client a short period to comply with the law), and then withdraw, if the lawyer knows actions of her client are causing substantial, intentional and unremediated injury to even one child’s welfare (Sarah has repeatedly admitted these facts, before the Ninth Circuit, and before the able USDC Judge).

Here the court documents clearly establish that it is hundreds — if not thousands — of children. And because they are covered both by US treaties, and federal statutes (and now as clearly articulated by the express terms of prior litigation, i.e., the Flores consent decree) — it is manifestly no excuse to argue “well they aren’t citizens.” The rights these children possess do not depend on the whim of Donald Trump, Bill Barr or Sarah Fabian. Sarah Fabian must withdraw, and if she will not — Judge Gee ought to order her jailed for contempt.

It is vanishingly unusual to see government lawyers taking multiple appeals from orders for soap, blankets, bedding and toothbrushes for minors in US custody. But it is beyond the pale, and UNETHICAL — for a government lawyer to further assist her client in thwarting clearly-written court orders on both providing these basics, and advising these children and their guardians of their rights, under US law. See:

. . . .[In California, applicable on her pro hac vice admission:] Rule 3-700 (B) Mandatory Withdrawal.

A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:

(1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(2) The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; or

[And, in Massachusetts:] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. . . .

[Finally, in DC (her current office location):] Rule 1.2(d). . . [8] When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1. . . .

Sarah Fabian ought to withdraw of her own accord, now — or the court ought to order her to face contempt (and thus jail), if she refuses to do so. Out.

नमस्ते