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Don’t Make a Federal Case of It

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eye on the news

Don’t Make a Federal Case of It

Why we can’t litigate the flaws out of our child-welfare agencies September 8, 2022
The Social Order
Politics and law

Oregon has “simply failed to address the overwhelming needs of its most vulnerable children,” Marcia Lowry, executive director of A Better Childhood (ABC), said in a statement after a judge certified the advocacy group’s lawsuit against the state last month. “Foster care is supposed to help kids, not make them worse, but that is exactly what foster care in Oregon is doing.”

The Oregon suit is one of at least ten filed against child-welfare agencies around the country in the past three years, but advocates have been using lawsuits to attempt to improve child welfare for decades. All but a handful of these suits get settled and end in federal consent decrees, meaning a federal monitor oversees a long list of metrics meant to improve the system. A 2000 study from the National Center for Youth Law found 57 child-welfare institutional-reform lawsuits involving 36 states, with consent decrees governing at least 35 of the suits. Some of these consent decrees have been in place for more than quarter of a century, but it’s not clear what these states have to show for them. Indeed, more states should consider fighting these lawsuits at the outset.

It is easy to sympathize with the advocates who try to sue our way out of child-welfare problems. The system seems broken in a variety of ways, and it is controlled by more than one branch of government, making it difficult to assess blame. Kids are spending too long in foster care; many foster parents are not well-trained, and some are in it for the money; social workers are young, inexperienced, and not reasonably compensated; family courts are backed up for months at a time; money flows from the federal government regardless of how a system is performing; and the only time people in charge at the state level seem to pay attention is in cases of high-profile child fatalities.

But just because the problems are similar doesn’t mean that they are the same. Different states suffer from different kinds of dysfunction, which is one reason that Maura Corrigan, former chief justice of the Michigan Supreme Court, doesn’t like the “cookie cutter approach” that ABC and another group called Children’s Rights have taken with their lawsuits.

In these lawsuits, the advocates typically find several children whose cases seem egregious and then claim that they are typical of the system. In Oregon, they found a boy who experienced 50 different foster placements and a nine-year-old girl who was physically restrained and given sedatives in an institution. The advocates then claim that social workers’ caseloads are too high, that there are not enough foster parents, and that the amount of residential congregate care in the state should be reduced or eliminated.

Corrigan’s first concern about these suits is that “federal courts [assume] jurisdiction over things that aren’t federal claims. There is no federal statute that has been violated or constitutional right. They want to take over things that are a matter of state policy. But that’s why we have an executive and a legislative branch.”

Ronald Richter, who served as the head of the Administration for Children’s Services in New York from 2005 to 2007, worries that the consent decrees resulting from these class-action suits turn into a “distraction” for the agency. “There are lots of different ways to reform a system, but getting a judge to run a child welfare system with a peanut gallery of other people” might not be the best one. Sometimes you need a “surgical approach,” he says.

While Richter says that the lawsuit against New York, known as Marisol v. Giuliani (filed in 1995), probably improved some things, like the use of technology by workers, he thinks the city might have addressed the problems on its own without the suit—and perhaps done better that way.

Corrigan notes that child-welfare systems have recently realized that it might be more important to measure the workloads of caseworkers rather than the caseloads. Some cases are much more complicated and time-consuming than others, so creating a consent decree that measures only the number of cases assigned to a worker keeps the system stuck in an older, less helpful model.

Washington, D.C., where federal oversight of child welfare has just ended (32 years after the filing of a class-action lawsuit), is hardly a successful example of reform by litigation. A local website recently reported that at least 11 children died while in some form of foster care in 2019 and 2020. In addition:

In fiscal year 2021, 1,757 children were in what could be described as fostering-in-place. A prior [Children and Family Services Agency] investigation found abuse, neglect or maltreatment by a parent, a parent’s paramour, relative or caregiver; however, the agency is allowing the children to remain in those dangerous environments, asserting that the risk is low or that the city lacks the legal authority to remove them.

An untold number are part of a diversion program that advocates call “hidden foster care.” Many of them live with relatives who have been coerced into the role by CFSA, often without legal protections provided through the court and without the resources they need to properly care for the children. In many cases the children are not receiving the required visits from case managers or social workers.

It’s bad enough that these lawsuits don’t seem to accomplish their goals; even worse, some of the reforms they seek wind up aggravating the problems. For instance, some lawsuits, like the one against Connecticut, demand a reduction in the use of congregate-care facilities. Most states have already dramatically reduced the population of foster kids both in institutions and overall. But often the very children these lawsuits cite—kids, for example, who have moved to as many as 50 different homes—are the ones who could benefit from the kinds of mental and behavioral health interventions available only in institutional settings. Oregon has so few congregate-care facilities that it was sending kids out of state at one point.

Only a few states have opted to fight rather than settle the lawsuits (Arizona is the most recent). More should do so. It’s not that the child-welfare system couldn’t benefit from more resources, but having a federal judge micromanage a statewide system for decades at a time is not working for anyone—especially the children.

Photo: Pattanaphong Khuankaew/iStock

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