So says a foster parent quoted in two new reports by independent child welfare experts linking failures throughout the Oklahoma Department of Human Services (DHS) with the often horrific abuse and neglect endured by children in state custody, filed today with the federal court presiding over a lawsuit brought by Children’s Rights and three Oklahoma law firms to reform the state child welfare system.

One report (PDF), by an independent child welfare consultant and social work professor, reviews the cases of five children named as plaintiffs in the lawsuit, evaluating DHS’s casework — and reaching damning conclusions.

“When attempting to describe the children’s harm and suffering, the words that come to mind are incomprehensible, unimaginable, outrageous, and immoral,” the author writes. “These five young children’s tragic and painful stories, told in the pages of their DHS case files about their stays in DHS custody, need not have been written. These tragic stories were wholly preventable.”

The other (PDF), by a social work expert with more than 35 years of experience in public child protective services, evaluates DHS’s efforts to protect nine children in Oklahoma foster care — and concludes that the risk of harm to every child in DHS custody is extremely high.

“Children in OKDHS’s care are more likely to be abused and neglected than are children in the care of almost any other state,” the author writes. “It is probable that all children who are placed in the custody of the agency are in danger of being placed with abusive, neglectful, and dangerous caregivers who OKDHS has failed to identify because of its deficient response to child abuse and neglect referrals.”

The reports were filed in support of a motion seeking state documents that will prove how widespread these problems are, which the state has refused to produce. Attorneys for the abused and neglected children named in the reform lawsuit, who are fighting an appeal by DHS that seeks to overturn a federal judge’s decision to allow the suit to proceed as a class action on behalf of all 10,000-plus children in DHS’s custody, say the reports reinforce the children’s claims.

“We now have expert documentation from two very experienced child welfare specialists confirming that the state of Oklahoma is, quite simply, failing to keep its most vulnerable children safe,” said Marcia Robinson Lowry, executive director of Children’s Rights. “Far from being unique to the children named in this lawsuit to reform the state child welfare system, DHS’s pathetically deficient practices ensure that every abused or neglected child who comes into its custody faces an inordinately high risk of suffering further maltreatment on its watch.”

Taken together, the two reports paint a picture of a child welfare system in dire disarray, shuffling children around endlessly between overcrowded, understaffed, and highly dangerous facilities and group homes and one unstable — and often abusive — foster home after another.
For example:

• RJ, now 13, has spent a total of more than six years in DHS foster care, going through 10 different placements and spending a total of 126 days in shelters — including one packed with so many children that it was once measured at nearly twice the legal capacity. DHS once received a referral alleging that RJ and three other foster children were beaten with a switch by their foster parents, and all four children confirmed that the foster parents regularly hit them with a switch from a tree. Three had marks from the beatings, and when a DHS worker visited the home, the foster mother acknowledged hitting the kids, saying, “If you don’t beat them down, they will run all over you.” DHS found the referral unconfirmed.

• AP was taken into DHS custody when she was two years old. Over a little more than 18 months in state foster care, DHS has subjected AP to seven different placements in two different counties. Inadequate supervision by her caregivers in two of those placements exposed AP to daily sexual abuse; when she suffered a suspicious fracture during a trial reunification with her father, DHS conducted a shoddy “investigation” in which they failed to interview AP, her sister, or any of the workers assigned to the family. During a gap of two months during the same investigation, DHS left the girls unprotected with caregivers who may have seriously abused one of them. Despite a “somewhat implausible” explanation of AP’s injury, DHS found the referral unconfirmed.

• JA entered DHS custody when he was four years old and went through ten different foster placements in less than ten months — a placement change on average every 53 days — including five different emergency or shelter placements in five counties amounting to more than one-third of his time in foster care. Even as JA began to show signs of significant emotional and behavioral deterioration, DHS workers failed to give him adequate attention. When, at the age of five, JA threatened to run away from his shelter placement and repeatedly made threats to harm himself by jumping out of a van or window “to go to heaven,” his caseworker not only did not increase the frequency of face-to-face visits to monitor his safety, but also failed to even consider a psychological evaluation of the boy.

According to the author of the review of the cases of the children named in the lawsuit, “there are striking similarities in the children’s case records and experiences in DHS custody that appear to indicate systemic deficiencies and persistent preventable failures.”

The author of the report on DHS’s efforts to assure the safety of nine children in its care is even more succinct: “It is likely that all children who are placed in the custody of the agency and who are subjects of child maltreatment allegations are at risk of physical and emotional harm.”

Children’s Rights joined four Oklahoma law firms and the international firm Kaye Scholer in filing a lawsuit in federal court in February 2008 seeking widespread reforms throughout the Oklahoma child welfare system on behalf of more than 10,000 abused and neglected children statewide who depend on the system for protection and care. The federal judge presiding over the case denied a motion by DHS to dismiss the case in January 2009, and, in May 2009, ruled that the case could proceed as a class action on behalf of all children in DHS custody. DHS subsequently appealed that decision, and oral argument will be heard by a federal appeals court in Denver on Thursday, November 19.

The full text of today’s reports and more information about Children’s Rights’ efforts to reform Oklahoma child welfare can be found at www.childrensrights.org/oklahoma.

Related Coverage

Report: Treatment of Oklahoma foster kids ‘immoral’ (AP/Tulsa World, November 11, 2009)

Report: Treatment Of Kids In Oklahoma DHS Care ‘Immoral’ (KOTV News on 6 Tulsa, November 11, 2009)

Child welfare experts say children in DHS custody at risk (KJRH-TV Tulsa, November 11, 2009)

New Reports Criticize OK DHS (KOKH Fox 23 Oklahoma City, November 11, 2009)

Lawsuit Claims DHS Negligent When Investigating Abuse (KOTV News on 6 Tulsa, November 11, 2009)

A report released today on the study’s findings, titled The Long Road Home: A Study of Children Stranded in New York City Foster Care (PDF), says the child welfare system (including ACS, the Family Court, nonprofit foster care agencies, and others involved in handling these cases) has lacked a sense of urgency in its efforts to bring children home to permanent families — and this, combined with inadequate resources and too little accountability has resulted in many children remaining in foster care for a very long time.

New York’s problems in this area are among the worst in the nation: the state (63 percent of whose foster care population is composed of children in New York City) ranks 40th of 47 measured by the federal government on timeliness of children’s return home from foster care. On timeliness of adoption, the state ranks 44th.

Today, ACS announced a renewed citywide campaign to quicken the pace of permanency for all children in New York City foster care.

“A major effort is long overdue to solve the problems, from inadequacies in the child welfare workforce to severe delays in the Family Court, that have kept thousands of children growing up with government agencies as their parents,” said Marcia Robinson Lowry, executive director of Children’s Rights. “This report is a roadmap for overcoming the barriers and speeding kids’ progress toward permanent homes, and we call upon New York’s lawmakers, the Family Court, and child welfare officials to implement its recommendations without delay.”

John B. Mattingly, Commissioner of the NYC Administration for Children’s Services, said ACS has been making substantial reforms to the infrastructure of the child welfare system for the past five years to address both children’s safety and permanency. “We have increasingly been holding ourselves and our contract agency partners responsible for helping youth find permanency through a safe return home to their families, a kinship placement, or adoption,” Mattingly said.”We intend to work with all of our partners in child welfare to turn the structural improvements we have now made into the results we all want for children and families.”

Mattingly said ACS and its provider agencies will begin a new campaign called One Year to Family to speed progress for both children entering New York City foster care and those now awaiting placement in permanent homes. Among the campaign’s objectives:

• Ensure that as many children as possible who enter care will achieve permanency within one year through either safe return home or placement with a family willing to make a permanent commitment to them should they be available for adoption.

• Establish specific plans by July 1, 2010, for children currently in foster care to achieve permanency within one year, to be developed through family team conferences and recommendations to the Family Court.

• Ensure that no child age 18-21 leaves foster care without opportunities for stable housing, employment, medical coverage, a connection to a caring adult, and a support plan.

• Strengthen the foster care provider agency workforce. Together with the state and federal governments, ACS will work to enhance federal funding for training of agency staff, develop minimum requirements for training systemwide, develop new recruitment and retention programs, and begin joint planning to develop a new funding design to better support all foster care providers.

Children’s Rights will track the efforts of ACS, the foster care agencies, and the Family Court toward increasing the pace of all children’s progress toward placement in permanent families.

The Long Road Home examines the case records of 153 children out of more than 4,000 in New York City who had, at the time of the study, remained in foster care for at least two years since they were slated for reunification with their parents or adoption. Their lengths of stay in foster care ranged from two years to nearly 17, and the average stay was 5.4 years. Nearly one-third of the children designated for reunification had been in foster care four or more years — and 10 percent had remained in care six years or more.

In addition to the case record review, researchers conducted interviews and focus groups with parents, foster parents, caseworkers, attorneys (for children, parents, and ACS), and Family Court judges and referees.

The Long Road Home pinpoints problems throughout the New York City child welfare system that contribute to delays in children’s progress toward permanent homes. High rates of caseworker turnover at contracted foster care agencies were prevalent throughout the cases studied. More than half the children in the study (51 percent) had three or more different caseworkers over a period of just two years. Three quarters of the agency workers interviewed for the study carried caseloads larger than the 11 to 12 children per worker recommended in a study commissioned by the state Office of Children and Family Services, and 43 percent said they were assigned caseloads before they received training.

Furthermore, the quality of the casework in many children’s cases was poor, as foster care agencies failed to engage families adequately or provide the intensity of contact and quality of services needed to return children home or get them adopted on a reasonable timetable. The agencies’ documentation of children’s and families’ progress was often incomplete or submitted late, contributing to delays in family court proceedings, and parents and foster parents who participated in the study said they did not receive the level of communication, respect, or support they needed from the agencies.

Equally troubling, most of the cases studied involved major delays in the Family Court. The average length of time between children’s removal from their homes and the court’s initial finding of whether abuse or neglect had taken place was 11 months. The average length of time from removal to disposition — the court’s decision whether to keep children in foster care or send them home — was 14 months, and took more than a year in 44 percent of the children’s cases. More than half the children in the study experienced delays in Permanency Hearings, required by state law every six months for all children in foster care, and court processes to legally free children for adoption were also slow. The average time to complete proceedings to terminate parental rights was almost two and a half years from the time termination petitions were filed.

“In my experience across the country, the standard for family courts in child welfare cases has been that both fact-finding and disposition should be completed within 90 days,” said Mattingly.

All of the groups that participated in the study — parents, foster parents, attorneys, and even judges and referees themselves — said the court does not consistently use its power to hold the parties in children’s cases accountable for their roles in these delays.

“Our state and city elected officials must devote adequate resources to solving these problems,” said Julie Farber, director of policy for Children’s Rights and one of the study’s authors. “All those involved in the cases of children in foster care, including ACS, the foster care agencies, and the Family Court, must accept some responsibility for the delays these children are experiencing and take action immediately to bring children home more quickly to the permanent families they need.”

The Long Road Home lists 18 recommendations for quickening children’s progress toward permanent homes. Among them:

• Take rapid action to address the cases of the children who have been stranded longest in New York City foster care. ACS should develop and execute plans to speed progress toward permanent families for the more than 4,000 children in foster care who have been slated for reunification or adoption for two years or more, and for the more than 2,600 children who are no longer designated for reunification or adoption and are likely to age out of foster care with no permanent family at all.

• Improve the Family Court process and accountability. The report calls on New York’s state legislature and governor to reduce overwhelming burdens on the Family Court by authorizing and funding more judgeships, and to enact mandated time frames for key Family Court proceedings. The Family Court itself should, the report says, require time-certain hearings, report publicly on the timeliness of court proceedings, and use its existing power to hold the parties in children’s cases accountable for ensuring timely progress.

• Improve the child welfare workforce, foster care casework, and accountability. The state and city should provide adequate funding to reduce both caseloads for child welfare workers and caseworker turnover, and take additional steps to improve recruitment, retention, and training. ACS should rigorously implement a quality assurance program to increase accountability among the foster care agencies, and report publicly on key performance measures.

• Improve supports and services for children and families. Areas where improvement is needed, according to the report, include visits between children in foster care and their families, planning and services for parents with mental illness and cognitive disabilities, and the Bridges to Health program for children with severe medical, developmental, or emotional disorders, which should be expanded significantly. The report also calls for additional housing assistance for vulnerable families and an increased commitment to preventive services aimed at strengthening families and keeping children out of foster care in the first place.

• Establish a new permanency option. The report calls on the state legislature and governor to enact and adequately fund subsidized guardianship as an option for abused and neglected children who cannot return home and for whom adoption is not an option, federal funds for which were recently made available to states by the Fostering Connections to Success and Increasing Adoptions Act of 2008.

“The lives and well-being of the children we represent literally hang in the balance,” said Tamara Steckler, attorney-in-charge of the Juvenile Rights Practice of the Legal Aid Society. “The time for action is now on such crucial initiatives for children as the Office for Court Administration’s request to increase the number of Family Court Judges and the need to limit caseloads and enhance training for city child welfare workers and foster care agency workers.”

Children’s Rights conducted the study in partnership with ACS and the Legal Aid Society Juvenile Rights Practice, with the voluntary participation of 28 private foster care agencies, and with input and support on various aspects of the project from many other organizations and individuals, including the New York City Family Court, the Council of Family and Child Caring Agencies, the Child Welfare Organizing Project, the Center for Family Representation, the Bronx Defenders, the Brooklyn Family Defense Project, the Citizens’ Committee for Children, and the First and Second Departments of the State of New York Unified Court System, Appellate Division, Law Guardian Program.

The project was funded with support from the Robert Sterling Clark Foundation, the Ira W. DeCamp Foundation, the Stella & Charles Guttman Foundation, the Edward and Ellen Roche Relief Foundation, the Marion E. Kenworthy-Sarah H. Swift Foundation, the Metzger-Price Fund, and the Marsicano Foundation.

To read The Long Road Home and find out more about Children’s Rights’ child welfare reform efforts in New York City and nationwide, please visit www.childrensrights.org/longroadhome.

The children were removed late last week from their homes in Anderson County — one of the counties targeted by the law — and now face decisions by the county’s juvenile court about whether they may be returned safely home or must be placed in state foster care for their protection. The presiding judge in Anderson County recently testified that she is influenced “every day” by a Tennessee law enacted in July 2009 that pressures judges to limit the number of children they commit to foster care through the threat of fiscal penalties for counties that exceed a prescribed limit on foster care commitments.

Children’s Rights attorneys say this not only endangers children, but also violates their constitutional rights and the 2001 settlement of a federal class action brought by Children’s Rights and co-counsel to reform the Tennessee child welfare system.

“These five vulnerable children face potentially life-altering decisions about how best to ensure their safety and well-being, and it is their right to have their cases heard by a judge who is free to choose the best option based solely on the facts of their cases,” said Ira Lustbader, associate director of Children’s Rights. “Pressuring judges to weigh the fiscal circumstances of their cash-strapped counties alongside these children’s interests violates the children’s constitutional rights and places them at risk of very serious harm.”

The law, which was proposed by the Tennessee Department of Children’s Services (DCS) and signed by the governor in July, requires counties to shoulder the entire cost of foster care for any children committed to state custody beyond a limit of three times the statewide average commitment rate. State officials have been clear in public statements about the law that its intent is to cut costs and reduce the overall number of children in state foster care by making judges think about their total number of commitments before taking individual children into custody.

Children’s Rights first took action against the law in September 2009, asking the federal judge in the long-running child welfare reform class action to issue an order blocking the law’s implementation. The Tennessee Council of Juvenile and Family Court Judges — an official organization representing all juvenile and family court judges statewide — supported the move in a “friend of the court” brief asserting that the law violates children’s rights and will erode public confidence in the integrity of the judicial process if allowed to stand.

The federal judge heard testimony on the matter in October, including a sworn deposition from Davidson County Juvenile Court Judge Betty Adams Green in which she said the new law “is telling the Court that rather than thinking about the law or the best interest of children, we need to be thinking about numbers and dollars.”

In another deposition, Anderson County Juvenile Court Judge April Meldrum testified that she felt pressured to house children in undesirable alternatives to foster homes — including emergency shelters and even local jails — or to transfer children’s cases to other counties because her own county could not afford the cost of exceeding the limit imposed by the law.

Anderson County leads the state in both the number of methamphetamine lab seizures and the number of children taken into state custody due to parental substance abuse — local realities that the arbitrary limit imposed by the state law fails to take into account.

Children’s Rights attorneys also assert that the state has other, lawful means of reducing foster care placements, including appealing individual judges’ decisions it believes to be unfounded and — more important — increasing family preservation services where necessary to keep vulnerable families together rather than taking children into foster care.

The federal judge ruled on October 16 that the children who are the plaintiffs in the broader child welfare reform class action were not legally eligible to challenge the new law, but wrote that the plaintiffs had raised substantial legal claims.

“We are doing everything in our power to get these children’s claims addressed by the federal court and get this very dangerous law struck down,” said David L. Raybin, an attorney with Hollins, Wagster, Weatherly & Raybin in Nashville serving as co-counsel on the case. “Our state’s vulnerable kids must be assured that their juvenile court judges won’t be interfered with in determining how best to keep them safe, and we will not stop fighting to protect their rights and their well-being.”

Today’s motion — and a complete archive of documents related to Children’s Rights’ efforts to reform Tennessee child welfare — can be found at www.childrensrights.org/tennessee.

According to the report (PDF), the third issued by the independent monitor appointed by the U.S. District Court in Atlanta to track the county’s progress, dramatic improvements in the Fulton County Child Attorney Office between December 2008 and September 2009 have resulted in smaller and more manageable caseloads for child attorneys, increased contact between the attorneys and the children they are assigned to represent, and greatly enhanced representation for children in juvenile court.

When Children’s Rights launched a class action to reform the Atlanta child welfare system in 2002, Fulton County had only four child attorneys, each carrying caseloads of as many as 500 children. As a result, children facing life-altering juvenile court decisions — about where they would live and whether they could be returned home to their parents or freed for adoption — generally did not meet the attorneys assigned to represent them before their court dates, and the quality of representation was exceedingly poor.

As of September 30, 2009, the county had 16 attorneys — plus paralegals, investigators, social workers, and administrative staff. Caseloads are now consistently smaller than 100 children per attorney (and smaller than 80 for all but one lawyer), and the attorneys are receiving high marks from the court-appointed monitor for the effectiveness of the counsel they provide.

If Fulton County remains in compliance with the court order requiring these reforms for eighteen continuous months, it may petition to exit court oversight. (Neighboring DeKalb County, which was also the target of legal action by Children’s Rights on these issues, successfully completed a similar reform effort and exited court oversight in October 2008.)

“This reform effort is transforming the legal representation provided to Atlanta’s abused and neglected children, ensuring that their voices are heard loud and clear on decisions that will profoundly affect their lives,” said Ira Lustbader, associate director of Children’s Rights. “There is still more work to be done, and Children’s Rights will continue to ensure that Fulton County makes all the improvements required under the federal court order, but this is great progress that deserves to be commended.”

Children’s Rights and attorneys at the Atlanta law firm Bondurant, Mixson, and Elmore LLP filed the class action known as Kenny A. v. Perdue in 2002 on behalf of the approximately 3,000 children in the custody of the state-run Atlanta child welfare system, seeking widespread reforms. In an unprecedented 2005 decision, the federal judge in the case ruled that all children have a constitutional right to zealous and effective legal representation throughout their time in foster care.

Under a court-enforceable settlement negotiated by Children’s Rights and county officials, Fulton County has established a Child Attorney’s Office independent of the juvenile courts, expanded its staff, strengthened its resources and operations, and lowered caseloads significantly. A workload study required by the settlement and conducted in 2007 recommended caseloads no larger than 80 children per attorney — a target that Fulton County has met for all but one of its staff.

Today’s report cites a few areas in which further improvement is needed in the quality of the representation provided to children by their attorneys. The attorneys must advocate more strenuously, the report says, for reasonable efforts by the state Department of Family and Children Services to keep children safely at home with their parents rather than placing them in foster care. Once children are in foster care, the report says, the attorneys must strengthen their advocacy for regular visits between the children and their parents and siblings, stability in their foster care placements, and other actions critical to moving children as quickly as possible out of foster care and into permanent homes.

Additionally, the report notes several problems in DFCS’s practices with respect to juvenile court hearings that may hinder the child attorneys’ ability to carry out their responsibilities. The state agency has been inconsistent providing attorneys with important documents related to children’s cases, including the child attorneys in meetings about the children they represent, and bringing the children to juvenile court hearings.

The juvenile court itself contributes further to delays in children’s cases, the report says, by assigning individual cases to more than one judge, failing to consistently enforce children’s right to counsel and to participate in hearings, and employing a confusing system for scheduling hearings.

Nevertheless, says the report, “while the progress of the Fulton [child attorneys] was previously characterized as slow but steady, the advances made during the preceding 15 months have catapulted the Fulton CA Office within the parameters of Kenny A. compliance.”

Attorney Jeffrey O. Bramlett of the Atlanta law firm Bondurant, Mixson, and Elmore LLP and attorney Erik S. Pitchal, assistant clinical professor of law at Suffolk University Law School, serve as co-counsel on the case.

For the full text of today’s report and more information about Children’s Rights’ ongoing reform efforts in Georgia, please visit www.childrensrights.org/georgia.

In Tennessee, however, a new law threatens children’s safety by interfering with these critical decisions — pressuring family court judges to limit the number of children they place in foster care for reasons completely unrelated to the facts of each child’s case.

And Children’s Rights is now in the midst of a heated legal battle to block it.

The law, which went into effect in July, imposes fiscal penalties on counties that exceed a prescribed limit on the number of children placed in foster care. State officials have been clear in their public statements that the intent of the law is to cut costs and reduce the overall number of children in state foster care by making judges think twice before taking kids into custody.

We agree that reducing the number of children taken away from their families and placed in foster care is a worthy goal. And we agree that judges must weigh their options very carefully before they take the drastic step of committing children to state custody. But the way to reduce foster care placements safely is to enhance services aimed at strengthening families and safeguarding children’s well-being at home — services that Tennessee has cut in recent months.

And attempting to pressure judges to weigh the fiscal circumstances of their cash-strapped counties alongside the interests of the children appearing before them not only violates children’s constitutional rights, but also places those children at risk of very serious harm.

In September, Children’s Rights took action, asking the federal judge presiding over our long-running (and successful) class action to reform the entire Tennessee child welfare system to issue an order blocking implementation of the law. The official organization representing family and juvenile court judges in Tennessee filed a brief strongly supporting our claims. And last week, we went to court in Nashville to present our case.

The federal judge heard testimony from Tennessee’s family court judges who said the law is already having the chilling effect that state officials intended — and harming children in the process.

Judge April Meldrum said she felt pressured to house children in profoundly undesirable alternatives to foster homes — like emergency shelters and even local jails — or to transfer children’s cases to other counties because her own county simply could not afford the cost of exceeding the limit imposed by the law. She recounted one instance in which her staff worked late into the night to find an alternative to foster care for one child, who slept on a bench in a courtroom while they searched.

Judge Meldrum works in Anderson County, which leads the state in both the number of methamphetamine lab seizures and the number of children taken into state custody due to parental substance abuse — hard realities that the arbitrary limit imposed by the state law utterly fails to take into account.

While the federal judge in our case ruled last Friday that the children who are the plaintiffs in our broader child welfare reform class action are not legally eligible to bring this new action against the state, he also acknowledged that we had raised substantial legal claims. We must now do everything in our power to get those claims addressed.

And we will. As the editorial board of Nashville’s Tennessean wrote today, the Tennessee child welfare system “is intended to be a safety net for children who, for whatever reason, no longer have a responsible guardian. This law has ripped a gaping hole in that net.”

Children’s Rights will not stop fighting until this very dangerous law has been struck down — and Tennessee’s vulnerable children are once again assured they will receive fair hearings at the most precarious moments of their lives.

In their final brief (PDF) to the U.S. Court of Appeals in Boston in support of their appeal, Rhode Island Child Advocate Jametta Alston and the national child advocacy organization Children’s Rights rejected the state’s arguments in recent filings that the lower court judge was correct to dismiss the case in April 2009 because the adults chosen to stand in for the seven children named as plaintiffs in the case did not have ongoing relationships with the children.

They also dismissed as “histrionic” the state’s charges that their campaign to reform the Rhode Island system represents a challenge to the authority of the state Family Court.

“We seek the reform of a child welfare system that has badly harmed the seven children in whose names we have brought this case, and thousands more like them who continue to suffer as a result of failures at every level of the Rhode Island child welfare system,” said Susan Lambiase, associate director of Children’s Rights. “This is not a challenge to the Family Court or the attorneys chosen to represent the children in that setting, but an effort to improve all aspects of the system in which the Family Court operates, and to produce dramatically better results for all of the children and families who depend on the system.”

The Rhode Island Child Advocate not only has the explicit statutory authority to bring lawsuits on behalf of the plaintiff children, the advocates write in today’s brief, but also has joined with counsel from within and outside the state who together bring vast experience in successfully improving the lives of children through actions like this one.

Furthermore, they write, the children have a right to use the federal court to vindicate their constitutional right to be free from harm in state custody. “The lower court failed to provide any proper basis for refusing to hear their claims and its decision should be reversed.”

The advocates filed the class action, known as Sam and Tony M. v. Carcieri, in June 2007, seeking widespread reforms on behalf of the approximately 3,000 abused and neglected children dependent on the Rhode Island Department of Children, Youth, and Families (DCYF). The children’s complaint alleged that the state violates their rights under the Constitution and federal law by failing to provide them with basic safety, protection, and care — often resulting in serious harm.

The district court dismissed the case in April 2009, ruling that the adults serving as the children’s legal representatives, or “Next Friends,” were inadequate because they were not the children’s family court law guardians and did not have current relationships with the children.

Alston and Children’s Rights appealed that decision in August 2009, and a broad national coalition of 15 children’s legal aid organizations and child welfare experts and the American Civil Liberties Union have signed on in support of their appeal.

The child advocates said that the district court had based its decision to throw out the children’s case upon multiple erroneous readings of the law, and the state had not supplied any acceptable legal rationale to justify the court’s dismissal. “Like fitting a square peg in a round hole, defendants were unable to contort the lower court’s flawed opinion into one which establishes the legal and factual grounds necessary to dismiss the children’s federal civil rights claims on the basis of allegedly inadequate next friends,” they wrote.

In addition to the Rhode Island Child Advocate and Children’s Rights, Vernon Winters of the international law firm Weil, Gotshal & Manges and Rhode Island attorney John Dineen serve as co-counsel on the case.

For more information about Children’s Rights’ campaign to reform the Rhode Island child welfare system, including the full text of the 2007 complaint and today’s brief, please visit www.childrensrights.org/rhodeisland.

“A more overt invasion of judicial independence is difficult to envision,” writes the Tennessee Council of Juvenile and Family Court Judges in a brief (PDF) filed late Tuesday with the U.S. District Court in Nashville in support of a move by the national child welfare advocacy organization Children’s Rights to block implementation of the law. Created by state law in 1982 — and existing more than 40 years before that as an informal group — the council is the official organization for all juvenile and family court judges in Tennessee.

Passed as part of an omnibus budget bill that took effect in July, the law — known as the Overcommitment Law — says that the state will pay the daily costs of foster care for only a set number of children in state custody, and it establishes fiscal penalties for counties whose judges commit more than a prescribed number of children (three times the statewide average). In September, Children’s Rights asked the federal judge presiding over its longstanding class action to reform the Tennessee child welfare system to strike down the law.

“The most basic notions of due process and equal protection mandate that every commitment decision be made solely on the facts of each case, and that children should not be treated differently based on factors unrelated to their cases,” the judges write in their brief. “Yet both the intended and actual result of [this law] is to impermissibly intrude on the independence of Tennessee’s juvenile courts, and to deny the equal protection of the law to children appearing before those courts.”

Children’s Rights attorneys representing Tennessee’s abused and neglected children contend that the law fails to take into account the local circumstances influencing foster care placements in each county and the unique facts of each child’s case.

They point to Anderson County, an undisputed target of the law, which leads the state in both the number of methamphetamine lab seizures and the number of children committed to state custody due to parental substance abuse. In measuring individual counties’ foster care placements against a statewide average without considering such unique local circumstances, Children’s Rights officials say, the law “is completely disconnected from these realities.”

The judges cite Hardeman County, which was already near the limit imposed by the law when it went into effect, as another example. Children who come before the court there and in other counties that are at or near the limit will not receive the same fair hearing afforded kids who live in counties that remain comfortably below the limit, according to the judges.

“Dispositions in these cases will include the consideration of the financial consequences to the county of commitment to state custody,” the judges write. “Even if commitment to state custody is the best disposition for a particular child, the mere timing of the case will affect, unconsciously or otherwise, the judge’s commitment decision.”

Ira Lustbader, associate director of Children’s Rights, welcomed the judges’ support.

“Tennessee’s juvenile and family court judges have made clear that they believe this law endangers the abused and neglected children who depend on them to make critical decisions about how best to protect them from harm,” Lustbader said. “We agree with the judges that kids should not be taken into state custody if it can be safely avoided, and that these decisions must be based only on the facts of each individual child’s case, not on the tally of children already committed into state care.”

Lustbader points out that in most cases, it is the state that is asking judges to put abused and neglected children into state custody in order to protect them — and the state now wants to count those very cases against an arbitrary limit. Furthermore, he says, the state has other, lawful means of reducing foster care placements, including appealing individual judges’ decisions it believes to be unfounded and, most important, increasing services to keep vulnerable families together in all counties.

Oral argument on Children’s Rights’ motion to block the law will be heard by Chief District Judge Todd J. Campbell of the U.S. District Court for the Middle District of Tennessee in Nashville on Tuesday, October 13, at 9 a.m.

Children’s Rights and a team of Tennessee attorneys have represented all children in Tennessee foster care since 2000, when they filed a class action against the state seeking the comprehensive reform of the state-run child welfare system. Agreements negotiated by attorneys at Children’s Rights to settle the case established court-enforceable reform plans that have produced major improvements — including increases in the number of children moved out of foster care and into permanent homes and reductions in the number of foster children housed in institutions, separated from their siblings, and placed in foster homes far away from their own communities.

The judges’ brief — and a complete archive of documents related to Children’s Rights’ efforts to reform Tennessee child welfare — can be found at www.childrensrights.org/tennessee.

But Children’s Rights advocates representing Michigan’s children say the reform effort is on unstable footing — and that Governor Jennifer Granholm and the leadership of the state Department of Human Services (DHS) must act decisively now to shore up support and secure the resources necessary to complete the work they have begun.

“Important progress has been made in the first year of this sweeping reform effort, and some of Michigan’s longest-suffering children are beginning to see the results,” said Sara Bartosz, senior staff attorney for Children’s Rights. “But the state’s leaders have too often retreated from their commitments and set back the reforms under economic and other pressures, and they must now redouble their efforts to fulfill the promises they’ve made to Michigan’s vulnerable kids and families.”

A report (PDF) issued Wednesday by the Public Catalyst Group, a team of independent national child welfare experts appointed by the federal court to track the Michigan reforms, evaluates the state’s progress from October 24, 2008 — when the court order mandating the improvements went into effect — through March 31, 2009, the end of the first monitoring period.

The report credits the state with taking swift action to reorganize its child welfare system, creating a centralized Children’s Services Administration dedicated exclusively to providing child welfare services and implementing a new system for collecting data critical to its ability to monitor children and families’ progress, identify problems, and respond quickly.

DHS is also on track to meet ambitious targets for reducing the caseloads of the child welfare workers responsible for foster care, adoption, and child protective services to manageable levels. Fully 95 percent of the state’s foster care workers, some of whom previously labored under caseloads that reached as many as 50 children per caseworker, now carry caseloads of 30 children or fewer. (DHS must further reduce these caseloads to no more than 15 children per foster care worker by October 2011.) Training for child welfare workers has also improved, according to the progress report.

Most important, 1,719 children from a backlog of 5,052 who had been waiting at least a year to be reunited with their families — and sometimes much longer — either went home (1,596 children) or were placed with relatives or adopted (123 children). DHS appears to be on track to move half the children in that backlog into permanent homes by a September 2009 deadline.

But DHS struggled in implementing other reforms, pushed deadlines that it now must work even harder to make up as additional deadlines loom, and cut vital services despite the state’s commitment — and the court’s order — to increase funding for key child welfare programs, and Children’s Rights attorneys say the missteps could endanger further improvements.

In addition to reducing the backlog of children waiting to be reunified with their parents, DHS also committed to do the same for another group of 4,260 children legally free for adoption and awaiting adoptive homes for a year or more — but succeeded in moving only 736 of these children into permanent homes during the first monitoring period. An additional 251 children from this backlog aged out of the Michigan child welfare system without permanent families. And in spite of its commitments to hire a SWAT team of 200 new permanency planning specialists and administrative staff, DHS cut corners by using existing foster care caseworkers to fill some of these key positions.

DHS also mishandled its implementation of a court-ordered requirement to license more than 4,000 families in which relatives of children in state custody have stepped forward to provide foster care — an initiative intended to provide them with financial aid equivalent to the support provided to non-relative foster parents, and to ensure they meet the safety standards required of other foster homes. DHS again failed to staff the positions adequately; during the first monitoring period, the agency achieved a net increase of just 418 children in licensed foster homes.

Additionally, while the court order and recommendations by the Public Catalyst Group called for DHS to increase its financial investment in addressing critical child welfare needs — including $4 million in new funding for programs aimed at keeping vulnerable families together, moving children out of foster care institutions and into permanent families, and providing transitional services and housing for young people aging out of the system — Governor Granholm and DHS are now presiding over an overall reduction in services resulting from tens of millions of dollars in budget cuts.

“There is no question that Michigan faces extremely difficult economic circumstances, but the ultimate effect of these service cuts will be to endanger countless families and children’s lives and rack up more expenses as more children get taken into foster care,” Bartosz said. “The state’s leaders must rally the legislature and the public behind improving these vital supports for the kids and families who continue to be hit hardest by tough economic times.”

Children’s Rights filed the child welfare reform class action known as Dwayne B. v. Granholm in August 2006, with Edward Leibensperger of the international law firm McDermott Will & Emery and Michigan-based law firm Kienbaum Opperwall Hardy & Pelton. Michigan Governor Jennifer Granholm signed a sweeping settlement agreement on July 3, 2008, and it was approved by the court that October.

For more information about Children’s Rights’ ongoing campaign to reform the Michigan child welfare system, including the full text of today’s progress report, please visit www.childrenrights.org/michigan.

Related Press

Report gives Michigan foster care overhaul mixed marks (Detroit Free Press, September 30, 2009)

Funding threatens gains in child welfare reform (Detroit News, September 30, 2009)

In foster care, change is slow (Detroit Free Press, October 1, 2009)

The law, which was proposed by the Tennessee Department of Children’s Services (DCS), passed as an amendment to the omnibus budget bill that took effect in July. It establishes fiscal penalties for counties whose judges commit more than a prescribed number of children to state custody (300 percent of the state average commitment rate) — and fails to take into account the local circumstances influencing foster care placements in each county and the unique facts of each child’s case.

In a motion (PDF) filed today with the U.S. District Court in Nashville, lawyers at Children’s Rights and their co-counsel in Tennessee asserted that the clear intent of the law was to save state funds by influencing judges’ commitment decisions with the threat of fiscal penalties to their counties. At hearings about the legislation, DCS officials have stated publicly that the goal was never to collect money from the counties, but to reduce the number of children placed in foster care.

“This law is unconstitutional and very dangerous to children who have already suffered abuse or neglect,” said Children’s Rights Associate Director Ira Lustbader. “These children have the right to have their cases heard by judges who will decide how best to keep them safe based only on the facts of their individual cases, not whether their counties are in danger of getting fined for exceeding an arbitrary limit on foster care commitments.”

Before the law was passed, the executive committee of the Tennessee Council of Juvenile and Family Court Judges unanimously passed a resolution opposing it, and, after it was enacted, “expressed great concern about the Legislative Branch telling the Judicial Branch how many kids they can or cannot commit to state custody.”

The new law violates the 2001 settlement of a federal class action brought by Children’s Rights and co-counsel to reform the Tennessee child welfare system, which requires that judges make safety decisions based on the facts before them and that children’s constitutional rights are protected at all hearings in juvenile courts. Furthermore, say attorneys, the law violates children’s constitutional rights to due process and equal protection by preventing those who live in counties with high foster care placement rates from receiving fair hearings.

“The express purpose of this law is to make judges think about the number of commitments in their counties each time they decide whether to place a child in state custody,” said David L. Raybin, an attorney with Hollins, Wagster, Weatherly & Raybin in Nashville serving as co-counsel on the case. “If you’re a child facing abuse or neglect at home, and you happen to live in a county where foster care placements are running high, this law ensures that you’ll be treated differently than you would if your county’s placements were low. That’s a clear violation of children’s constitutional rights.”

Today’s challenge to the new law notes that Anderson County, an undisputed target of the law, leads the state in both the number of methamphetamine lab seizures and the number of children committed to state custody due to parental substance abuse. In measuring individual counties’ foster care placements against a statewide average without considering such unique local circumstances, the law “is completely disconnected from these realities,” the motion says.

Additionally, lawyers at Children’s Rights assert that the state has other, lawful means of reducing foster care placements, including appealing individual judges’ decisions it believes to be unfounded and, most important, increasing family preservation services where necessary to keep vulnerable families together.

“Tennessee could achieve its goal of minimizing foster care commitments by enhancing the support and services it provides to help families stay together, which would be absolutely the right thing to do,” Lustbader said. “Instead, this law seeks to influence judges’ decisions in individual children’s cases, which is unfair and dangerous.”

Children’s Rights and a team of Tennessee attorneys have represented all children in Tennessee foster care since 2000, when they filed a class action against the state seeking the comprehensive reform of the state-run child welfare system. Agreements negotiated by attorneys at Children’s Rights to settle the case established court-enforceable reform plans that have produced major improvements — including increases in the number of children moved out of foster care and into permanent homes and reductions in the number of foster children housed in institutions, separated from their siblings, and placed in foster homes far away from their own communities.

Today’s motion — and a complete archive of documents related to Children’s Rights’ efforts to reform Tennessee child welfare — can be found at www.childrensrights.org/tennessee.

Related Press

Child advocacy group wants Tennessee’s new foster-care law blocked (Tennessean, Sept. 10, 2009)

Advocates Ask Judge To Block Limits On Foster Care (AP, via NewsChannel 5 Nashville)

In an amicus curiae (”friend of the court”) brief (PDF) filed today in the United States First Circuit Court of Appeals, the Rhode Island affiliate of the ACLU asserted that the federal court system is the appropriate venue for protecting the constitutional rights of children dependent on the state child welfare system — and the need for unimpeded access to the courts is critical.

“The Plaintiffs have properly chosen the independence and resources of the federal court for a case of this dimension, consequence, and sensitivity,” says the ACLU’s brief. “Tragically, the Plaintiffs have simply been tossed out of the forum best suited to hear their case when the law says they are properly there.”

The class action was filed by Rhode Island Child Advocate Jametta Alston, Children’s Rights, and local and national co-counsel in June 2007, seeking widespread reforms on behalf of the approximately 3,000 abused and neglected children dependent on the Rhode Island Department of Children, Youth, and Families (DCYF). The children’s complaint alleged that the state violates their rights under the Constitution and federal law by failing to provide them with basic safety, protection, and care — often resulting in serious harm.

The district court dismissed the case in April 2009, ruling that only the law guardians, or guardians ad litem, appointed to represent the children in family court could serve as their legal representatives, or “next friends,” in federal court — and that the adults chosen to serve as next friends in the reform class action were inadequate because they did not have current relationships with the children.

Alston and Children’s Rights appealed that decision on August 10, asserting that there is no legal reason why representatives other than the children’s family court law guardians cannot bring the federal case on their behalf — and that the very failures at DCYF that the class action seeks to correct are responsible for preventing the children from maintaining current relationships with other adults who could represent their interests in court.

The ACLU offered support on this point, echoing a separate amicus curiae brief filed last Friday by 15 national children’s legal aid organizations and child welfare law experts. That brief noted that the children’s Family Court guardians ad litem may be constrained by legal, political, and other challenges that would prevent them from effectively representing the children’s interests in matters beyond the dependency hearings that are their primary responsibility.

Wrote the ACLU: “The legitimate and vitally necessary efforts of the Next Friends to advocate on Plaintiffs’ behalf and protect their federal rights must not be thwarted merely because the Family Court has previously appointed guardians ad litem in distinct and unrelated proceedings. This is especially true where there is clear record evidence that these guardians ad litem have not and will not likely challenge DCYF’s actions and omissions because of alleged conflicts of interest.”

Children’s Rights officials welcomed the support.

“Children’s legal advocates, child welfare experts and civil rights groups across the nation agree that the district court’s ruling wrongly forecloses a vital avenue for defending the constitutional rights of children and other vulnerable populations,” said Susan Lambiase, associate director of Children’s Rights. “We continue to believe that the district court erred in denying Rhode Island’s foster children their day in court, and that its ruling should be reversed.”

For more information about Children’s Rights’ campaign to reform the Rhode Island child welfare system, including the full text of the 2007 complaint, the appeal, and the briefs filed in support of the class action, please visit www.childrensrights.org/rhodeisland.

Related Press

ACLU supports child advocate’s legal fight (Providence Journal, August 20, 2009)