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)

A separate brief (PDF) filed yesterday by the Field Center for Children’s Policy, Practice, and Research at the University of Pennsylvania also supports the class action, asserting that the district court’s rationale for dismissing the case “ignores the reality of foster children’s lives, to their detriment.”

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 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 the children’s next friends in the reform class action were inadequate because they did not have current relationships with the children.

The children’s attorneys appealed that decision to the United States First Circuit Court of Appeals in Boston on Monday, 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 briefs filed yesterday and today bolster both claims. On behalf of the National Association of Counsel for Children and 14 other children’s legal aid organizations and child welfare law experts who have signed on as amici curiae (”friends of the court”), Suffolk University Professor of Law Erik S. Pitchal writes that the law guardians appointed to represent children in family court face numerous challenges — including high caseloads, low compensation, and political and legal constraints — that limit their ability to effectively advocate for children in matters beyond the dependency hearings that are their primary responsibility, such as the Rhode Island reform class action.

“Strong anecdotal evidence suggests that these lawyers work under such crushing conditions that they are often barely able to provide effective representation to all their clients within dependency proceedings, let alone have the time to pursue ancillary matters with much vigor,” the brief says.

The other brief, authored by attorneys for Stroock & Stroock & Lavan LLP on behalf of the Field Center for Children’s Policy, Practice, and Research at the University of Pennsylvania, cites a multitude of research findings demonstrating that children in foster care are often unable to develop the kind of relationships the district court ruled are required of the adults who would stand in for them in federal court.

According to the brief, the very act of moving children multiple times between different foster homes, institutions, and other placements prevents children from maintaining long-term relationships. This is compounded, the brief says, by the trauma children experience when they are abused and neglected, taken away from their families, and, in some cases, maltreated again in foster care — all of which can result in attachment disorders and other conditions that further limit their ability to developing the “significant and sustained relationships” the district court said they must have with their next friends.

Children in Rhode Island foster care can expect to be moved nearly three times over a span of less than three years, the brief’s authors note. DCYF places children in institutional settings at a rate that far exceeds the national average, and some of the children named as plaintiffs in the reform class action have both suffered further abuse and neglect in state custody and developed severe attachment disorders as a result.

“The ’significant’ relationship that the district court would require of the next friends is simply not viable in the context of foster children, particularly for foster children who rely on state foster care systems that are deficient in the ways in which the plaintiff children here allege,” the brief’s authors write.

Children’s Rights officials said both briefs emphasize the impossible position the district court’s ruling creates for children dependent on Rhode Island’s failing child welfare system.

“These children are trapped in a system that has failed to protect them, damaged their health and well-being, and prevented them from maintaining exactly the kind of relationships the district court says they must have with anyone who would serve as their legal representatives in seeking help from the federal court,” said Susan Lambiase, associate director of Children’s Rights. “That’s the same as saying they cannot seek help at all.”

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 this week, please visit www.childrensrights.org/rhodeisland.

The new “Recruitment and Retention Plan for Milwaukee County” (PDF), prepared by the Utah Foster Care Foundation and released publicly today, not only prescribes specific steps the BMCW must take to recruit 250 foster families per year until it meets the needs of all of the abused and neglected children who depend on it, but also says the bureau must significantly improve both the support it offers foster families and the relationships it maintains with them and the communities from which it recruits them.

The continuing lack of available foster families has led the BMCW to move many of the abused and neglected children in its custody repeatedly from one poorly matched foster home to another, placing their well-being at risk and reducing their chances of being returned to their families or adopted.

“For too long, the vital role of Milwaukee foster parents in nurturing children in foster care and keeping them safe has been undervalued,” said Eric Thompson, senior litigation counsel for Children’s Rights. “This plan sets forth concrete strategies for correcting the problems of the past and focusing the BMCW, the agencies it contracts, and the community members they serve on the shared goal of providing dramatically better care for Milwaukee’s abused and neglected kids.”

The recruitment and retention plan was developed as part of a long-running effort to reform the troubled Milwaukee child welfare system under the 2002 settlement of a class action brought in federal court by Children’s Rights on behalf of the more than 2,600 children who depend on the system for protection and care. In December 2008, Children’s Rights and state officials negotiated a Corrective Action Plan aimed at bringing the BMCW into compliance with several requirements for reform encompassed by the court-enforceable settlement; the 2008 agreement requires the BMCW to undertake diligent and good-faith efforts to implement the recruitment and retention plan.

Among the plan’s key findings and recommendations:

• The BMCW must increase accountability for successfully recruiting and retaining foster families. The bureau must maintain better data on foster families and the children in its care to improve the recruitment and placement process, conduct accurate and thorough annual assessments to determine the number and types of foster families needed to care for the children in its custody, develop plans for meeting the needs identified, and include performance-based measures in the contracts it negotiates with private agencies to recruit foster families. An initial goal of 250 new foster families per year is recommended.
• Foster and adoptive families must be recognized and treated as essential members of the foster care team. The BMCW must provide better training and support for foster families and solicit their input when decisions are being made about the children in their care. The bureau should also undertake a community relations effort aimed at improving public perceptions regarding foster care and adoption in Milwaukee, and consider decentralizing its recruitment operations and moving them into the communities they serve to engender a more responsive and collaborative relationship between the bureau and prospective families.
• Foster parents must support children’s transition from foster care into permanent homes. The BMCW must make clear in training foster parents that they will be expected to support efforts to safely reunify children with their parents — or to move children toward adoption or legal guardianship if reunification is not possible.
• Support payments to foster families must be increased. Rates for subsidizing the cost of providing for the essential needs of children in foster care must be increased to reflect the actual costs of providing care, as calculated in a 2007 Children’s Rights report on state-by-state foster care expenses.
• The BMCW must help sustain a strong association of foster parents in Milwaukee. The plan recommends that the two largest foster parent associations in the city join as one unified organization that can help recruit and support foster parents and advocate on their behalf, and recommends that the BMCW provide funding to support the organization’s active participation in recruitment and retention efforts.

The plan also notes concerns that the agency contracted by BMCW to recruit foster families has not been sufficiently sensitive to issues of poverty and culture in the racially and ethnically diverse urban areas where the need to recruit and retain foster families is greatest, and recommends devoting particular attention to addressing these concerns.

“While this plan’s critiques are strong and its goals ambitious, we are encouraged by the BMCW’s commitment to regard it as an opportunity to transform its relationships with foster parents in Milwaukee,” said Thompson. “Children’s Rights will support the BMCW in these efforts, and we will do whatever is necessary to ensure that the plan’s recommendations are implemented.”

The court order under which the BMCW is operating is the result of the federal class action known as Jeanine B. v. Doyle, filed by Children’s Rights and co-counsel in 1993, which charged that the Milwaukee child welfare system was grossly mismanaged and failed to protect the safety and well-being of the children in its care. In 1998, the state took control of the previously county-run system with the creation of the BMCW. A court-enforceable settlement agreement mandating an overhaul of the child welfare system and better outcomes for children was reached in 2002.

The settlement produced significant results — notably a drastic reduction in caseloads for Milwaukee child welfare workers and an equally dramatic upswing in visits between caseworkers and children in foster care. But serious problems remain, and in December 2008, Children’s Rights and state officials worked collaboratively to reach agreement on a Corrective Action Plan aimed at bringing BMCW into full compliance with the requirements of the settlement agreement, which remains in effect.

The full text of today’s assessment — and more information about Children’s Rights reform efforts in Milwaukee — can be found at www.childrensrights.org/milwaukee.

Related Press:

Foster care agency fares poorly in report (Milwaukee Journal Sentinel, 8/13/2009)

Couple glad they returned to system (Milwaukee Journal Sentinel, 8/13/2009)

Mom to four says it’s worth the effort (Milwaukee Journal Sentinel, 8/13/2009)

Foster families in Milwaukee County (Slideshow, Milwaukee Journal Sentinel, 8/13/2009)

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 were inadequate because they were not the children’s family court law guardians and did not have current relationships with the children.

But Alston and Children’s Rights say 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. Moreover, they say, the court erroneously relied upon a rule in dismissing the case that was designed to ensure children’s access to the courts.

“Instead of closing the courthouse doors to these children, the district court could have appointed other legal representatives for them,” said Alston. “We are simply asking the appeals court to give the children the opportunity to present their case that the district court has denied them.”

Said Susan Lambiasse, associate director of Children’s Rights: “These are children who have suffered terrible neglect, physical and sexual abuse, and other injustices in DCYF’s custody for years. The court itself describes their stories as heartbreaking, and yet it has cut off the only avenue through which they could bring their claims before the federal court. We believe this was a decision made in error, and we believe it should be reversed.”

Among the children on whose behalf Alston and Children’s Rights brought the class action are:

• David, a 15-year-old boy who has remained in DCYF’s custody since the age of two. As a toddler, David was placed in foster care in the home of Mary Melvin, a foster parent for 20 years who has twice been named Rhode Island Foster Mother of the Year. Despite a strong bond between David and Ms. Melvin — he called her “Mom” and she refers to him as a member of her family — DCYF removed David from Mary’s home and shuffled him for the ensuing decade through a series of institutions including a shelter, a psychiatric hospital, and a residential treatment center where he was sexually abused by a roommate. DCYF deemed David “too damaged for adoption” in 2005; Ms. Melvin is among the legal representatives deemed inadequate by the district court.

• Caesar, now almost eight years old, whom DCYF has bounced around to several different foster homes over seven years during which he has been exposed to drug use and physical abuse and placed in one unlicensed foster home that DCYF had itself deemed unfit and unsuitable. In Family Court, Caesar has been represented by at least six different law guardians; the district court, in dismissing the class action brought in Caesar’s name, contended that these law guardians were the only appropriate legal representatives for Caesar, and that the school psychologist who worked intensively with Caesar three to four times weekly over the course of the 2006-2007 school year was not an adequate representative.

• Sam and Tony, brothers who were taken into state foster care at age four and infancy respectively in 1999 and suffered extreme abuse over the next five years in DCYF’s custody — burned with a cigarette in a foster home, sexually assaulted, verbally threatened. DCYF returned the boys to their mother three separate times in spite of 14 reports that she was incapable of safely parenting them, eight of which DCYF confirmed. Since December 2000, Sam and Tony have been represented by at least six different family court law guardians.

The class action brought against Rhode Island on the children’s behalf charges DCYF with moving children excessively between unstable foster homes, returning them to their parents unsafely, and leaving them to languish for years in foster care without permanent homes. DCYF also institutionalizes young children in foster care at more than double the national rate, and recorded the single highest rate in the nation of children suffering abuse or neglect in its custody in five of the six years from 2000 through 2005.

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 appeal, please visit www.childrensrights.org/rhodeisland.

Related Press

Advocate Seeks to Revive RI Foster Care Lawsuit (AP/Boston Globe, August 11, 2009)