Class-action suit challenges Massachusetts foster care system

Introduction

The state of Massachusetts is going to trial this week, fighting accusations that it is systematically failing to protect children in foster care from allegedly unfit foster homes, physical abuse, medical and educational neglect, questionable psychotropic drug doses and other harm.

Children’s Rights, a New York-based children’s national advocacy group, filed suit against Massachusetts Gov. Deval Patrick and two health and human services officials in April 2010. The trial that opened in federal court in Boston Tuesday could last for weeks.

Massachusetts has a good reputation as a state concerned with child welfare, Children’s Rights’ executive director Marcia Robinson Lowry said. But after two years of research, her group was surprised to conclude that the state’s child-welfare system is “one of the most dangerous in the country on a number of significant measures.”

The Children’s Rights’ suit is a class-action lawsuit with six young plaintiffs whose alleged neglect is specifically described, along with findings based on data measuring various aspects of children’s care. Massachusetts tried, unsuccessfully to get a court to block Children’s Rights’ pursuit of a class-action lawsuit representing all the state’s foster children, who currently number about 7,500.

Massachusetts is the first state to decide to go to full trial – instead of settling— in response to a legal challenge by Children’s Rights alleging that foster children’s constitutional rights are being violated. Children’s Rights has sued 15 other states’ foster-care and welfare systems for alleged neglect of children.

“The accusation of deliberate indifference just does not fit,” said Angelo McLair, commissioner of the Massachusetts Department of Children and Families, who is also named as a defendant in the suit. He told the Center for Public Integrity that the trial— expected to last weeks— is an opportunity for the state to air its side of the story, including a description of changes it has undertaken to improve the foster-care system.

Court documents show that McLair and the defendants, including Gov. Patrick, have argued that Children’s Rights can’t establish a link between the alleged harm done to the six individual plaintiffs and the need for “systemic” changes that the class-action lawsuit seeks —including federal court-ordered reforms and oversight. In a background document given to the Center, the state says, “We expect the full evidence at trial to show that the Department (of Children and Families) meets its obligations under the law to protect children from abuse and neglect.” The state has a more “comprehensive process of screening in cases for investigation” of alleged abuses than 44 other states, the document also says.

Unlike other states that the Children’s Right’s group has sued, Lowry said, Massachusetts “has expressed no interest in settling this case.”

She said that in Massachusetts, “there has been, from time to time, lip service to fix these problems.”

But while some changes have been instituted, Lowry said, “they have been improvements around the edges – with plans.” And some of the state’s own witnesses so far have said it’s too soon to tell if they’ll work, Lowry said.

“The state is actually misspending money,” Lowry said, because of allegedly poor practices that end up “compounding” children’s problems and costing taxpayers more as children languish in state care for years, requiring ever more specialized care, or cycle in and out of the system.

In its lawsuit, Children’s Rights describes harrowing allegations of suffering by the plaintiffs, including a boy named Connor B., who was removed from the care of his mother when he was six-years-old because of alleged neglect and endangerment in her home.

Connor was placed in a foster home with another older boy officials knew could pose a threat, the lawsuit says, but there were insufficient safety plans in place inside that home and the boy began to allegedly sexually abuse Connor in his room. Connor was moved at least five times during his first year in foster care, the suit says.

Because of abuses suffered following his abuse in foster care, according to the lawsuit, Connor was hospitalized for more than four months and diagnosed with post-traumatic stress disorder. A specialist made specific recommendations for where Connor should be placed. But child-welfare officials allegedly disregarded those recommendations and Connor, as a result, failed to get appropriate therapy and access to schooling as he was shuttled about from home to home, the suit says.

McLain said the state’s attorney didn’t want him to get into a discussion of legal stategy, but that once in court, the state will address allegations of neglect and the system’s transformation in recent years.

The lawsuit says Massachusetts moves children around among foster homes with “damaging frequency.” A federal audit ranked the state eighth worst among 51 jurisdictions, including states and the District of Columbia, reporting data on “placement stability.” This is a measuresment of how well a jurisidiction does at keeping children in stable foster homes rather than shuffling them around. The suit also notes that a federal audit ranked Massachusetts at 13^th worst among 47 jurisdictions reporting data related to “timeliness of adoptions” of children in foster care.

In a background document, the state’s Department of Children and Families says that its decision to contest the Children’s Rights’ lawsuit is “further evidence that we are confident in the work that we are doing on behalf of children in the Commonwealth.”

In the last four years, the document says, the state has increased “placement stability” of foster children from 73 to 79 percent, an improvement in the measurement of how well a jurisdiction is doing in avoiding transfers of children from home to home. Officials attribute to better rates of placement of children with relatives.

McLair, the commissioner of children and families, said that a review in 2009 led officials to acknowledge that they had to strive to improve the rate at which they were placing children with kin rather than non-relative foster parents. The rate of placement with kin increased from 72 percent in 2008 to 80 percent today, McLair said.

He also said that Massachusetts has improved its child-to-social worker caseload in recent years, from 18 to one to a current level of 16 to one. And, McLair added, the state recently boosted payments to foster parents, who were being underpaid.

The state doesn’t dispute examples of some problems that need to be addressed, McLair said. But he said officials disagree that the state needs federal court oversight to keep making improvements.