Charlie and Nadine H. were removed from their mother’s care in 1994 after she tried to drown three-year-old Nadine in a bathtub. The State of New Jersey placed the siblings in the care of their father’s estranged wife, who beat them with curtain rods, metal rulers, and a bucket. She also gave her boyfriend, who had spent time in prison for sexually abusing his own child, unfettered access to Charlie and Nadine, and he abused them, too. Five and a half years after the children came into state custody, a national advocacy group, A Better Childhood (ABC), filed a class action on behalf of Charlie and Nadine and several other children in foster care. The ABC lawyers argued that New Jersey’s actions were “inconsistent with the exercise of reasonable professional judgment and also amount to a pattern, practice and custom of deliberate indifference to plaintiff children’s constitutional rights.”

The lawsuit resulted in more than 20 years of federal court oversight of New Jersey’s child welfare system, costing tens of millions in legal fees and monitors’ costs. In the fall of 2023, the state declared victory: the court determined that the system was functional enough to run on its own again. But a close examination of New Jersey’s system leaves much doubt about whether anything has improved.

As almost every state in the country has faced, or is currently facing, one of these class action suits, it’s worth asking what these consent decrees accomplish. Like Charlie and Nadine, most of the children named in these suits suffered chronic abuse and deprivation that the state either knew about or should have known about. New Jersey’s lawsuit, like other states’, focused heavily on shortages of caseworkers, appropriate foster homes and residential treatment facilities, and health care and education services for children. The lawsuits demonstrated that children who had already been egregiously mistreated by their families of origin were shuffled through numerous ill-equipped, unsafe, or inappropriate relative placements, foster homes, and residential facilities, and that overburdened and poorly trained caseworkers ignored the health and safety needs of these kids.

The Center for the Study of Social Policy (CSSP), a nonprofit appointed by the court in 2006 to oversee the settlement, reports that “New Jersey has worked to bring its child welfare policies and program into compliance with the goal of creating a system that keeps children safe, healthy and connected.” But neither safety and quality of foster care nor the health and wellbeing of children in foster care was mentioned in the steps taken to end  the oversight. To accomplish that goal, the CSSP announcement says, the state passed legislation that “includes, among other things, caseload standards and the obligation to keep children within their own communities, maintain contact with their siblings and relatives and have their educational needs met.”

It’s true that many of the children in New Jersey’s system were separated from siblings or were denied appropriate educational accommodations and other services like therapy for the trauma they had experienced. But the primary cause for these lawsuits and the reason they so shocked the conscience of the public and lawmakers was the horrendous abuse and neglect that children endured, and the state’s lack of safe placements for them once they were removed from their abusive homes.

The big change in New Jersey’s child welfare environment is a vast reduction in the number of kids in foster care—from more than 10,000 to fewer than 3,000 in that period. According to CSSP, “Due to a focus on prevention of maltreatment, New Jersey now uses family separation as a safety intervention significantly less often than the national average.” It would indeed be a cause for celebration if New Jersey had prevented so many cases of maltreatment. Are there data to support that story?

Near the start of the lawsuit, in 2001, New Jersey investigated or assessed about 71,000 children through the child welfare system and alternative-response programs. That number rose to about 90,000 by 2015 and remained unchanged through 2022, except for a dip during Covid. What has changed, however, is the percentages of those children that New Jersey deemed victims of maltreatment. In 2001, the state identified 12 percent (8,500) of assessed children as victims, and in 2015, 10 percent (8,800). But by 2022, the state suddenly identified only 2,888 victims—3 percent of assessed children, one of the lowest rates in the nation. Did people make more false reports in recent years? It’s hard to know, but the goal of reducing the caseloads of agency workers can create perverse incentives: either you hire more workers, or you ensure that fewer cases are given to them.

The number of kids receiving in-home services through the child welfare system has also plummeted in recent years, from 42,000 to 28,000 between 2015 and 2022. The number of prevention-service recipients seems to be declining, too, from 202,291 children in 2015 to 72,691 by 2021. Home-visiting programs, touted as a major portion of New Jersey’s prevention efforts, also served fewer families: 6,400 families in 2015 and 4,967 households in 2022. How are more children being kept safe in their homes when the state is providing fewer services, both in and out of the child welfare system?

The state has gone so far as to say (as of 2020) that it no longer recruits or trains foster parents because children are being cared for by kin rather than nonrelatives. But that does not explain the steep decline in foster care, as foster kids cared for by relatives are still counted as being in the foster care system. Perhaps New Jersey is engaged in kinship diversion—a practice criticized by the original lawsuit—whereby caseworkers informally place children with relatives who have not been screened for safety risks and who receive no oversight. This, too, would have the effect of reducing caseloads, but children in these informal arrangements have no legal entitlement to the very things the lawsuit sought to ensure: adequate health care, educational services, physical safety, and a caseworker who checks in regularly to ensure that their needs are met.

In short, New Jersey has drastically reduced the number of children it identifies as victims and places in foster care without either reducing the number of children that community members suspect are being victimized or increasing the number of children served in their familial homes. Rather than building a foster care system that can meet the needs of children who are unsafe in their homes or serve all those children in their homes, New Jersey appears to have decided, suddenly and without explanation, that it has many fewer victimized children than previously believed.

It’s also worth noting that CSSP, which is paid millions of dollars to oversee these settlements, is one of the originators of the upEND movement, which wants to abolish the child welfare system entirely. As the CSSP website explains, it “seeks to end the current child welfare system as we know it and to reimagine new, anti-racist means of keeping children safe and protected in their homes.” It is not clear why an organization that does not believe foster care should exist was charged with bolstering the capacity of the foster care system to protect and support children in need. Charlie and Nadine plainly could not be cared for in their home, nor could they be cared for by others in their family. It was incumbent upon the state to find a safe, loving, and permanent family for these children and thousands of others like them. The state could not meet its obligation to Charlie and Nadine 20 years ago. Would it be able to do so today?

Photo: ArtMarie/iStock


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