WMD Law Group News: July 2017

Wednesday, July 19, 2017

Federal Court Grants Tennessee Governor and Department of Children’s Services (DCS) Exit From 16-Year Lawsuit, Demonstrating Top-to-Bottom Systemic Reform of Foster Care System Reporting Will Continue for 18 Months

Legal advocacy can make government accountable and transform the way children are treated by public systems. Tennessee is a prime example,” says Children’s Rights

(Nashville, TN)—In a momentous ruling for children in foster care served by Tennessee’s Department of Children’s Services (DCS), a federal court today ordered that the agency can exit federal court oversight from more than 140 improvement requirements in the Brian A. case, a 16-year long lawsuit brought to overhaul the state’s foster care system.

“Tennessee’s sustained compliance with court-ordered improvements demonstrates that real, systemic child welfare reform is achievable in America,” says Ira Lustbader, Litigation Director of Children’s Rights. “Failing systems don’t have to be the norm. Legal advocacy can spark accountability over government and transform the way children are treated by public systems,” Lustbader adds.

When the Brian A. case was filed in 2000, Tennessee’s foster care system was beset by systemic problems such as dangerously high caseloads for front-line workers protecting children, low child-parent reunification rates, inadequate worker training, repeated financial mismanagement, and a propensity to place children in emergency shelters and orphanage-like settings. The state committed to an ambitious, multi-year reform process under a 2001 settlement to comprehensively improve its child welfare policies, practices, and outcomes for foster children and families. Today, DCS has met and sustained improvements on more than 140 mandated benchmarks to overhaul its foster care system, allowing the state to exit court oversight of those improvements and enter a final phase where an external accountability center, funded by DCS, will continue to issue public report cards on the state’s progress in key areas for 18 months.

“Tennessee has transformed what had been a problem-plagued child welfare system into one that, while not without challenges, embraces best practices and is appropriately considered in many areas to be a national model,” says the Technical Assistance Committee, which has functioned as court-appointed monitors, providing public reports on DCS’ performance for the duration of the lawsuit.

In stark contrast to the allegations in the complaint, the current experience of children in foster care in Tennessee is dramatically different:

Foster children in Tennessee are more likely to be reunified with their families or adopted more quickly. Today, 50 percent of children in foster care in Tennessee exit custody to reunification with their families or to adoption within 12 months, and 75 percent leave foster care to reunification or adoption within two years—making Tennessee among the better performing child welfare systems in achieving timely permanency for children.

Children entering foster care in Tennessee are much more likely to be placed with families than in group care facilities. DCS has eliminated its use of emergency shelters, and 85 percent of children entering the system are now being placed in family settings. Case reviews show 99 percent of children are appropriately housed in placements that can meet their needs, and virtually 100 percent of all children under age 6 are in family homes.

The emphasis on permanency for older youth in care has reduced the number and percentage of children “aging out” of care without a permanent family, and has provided critical assistance for those who do. Children in foster care who turn 18 without achieving permanency, and who in the past would have faced legal independence with little or no help, now have the option to enter Extension of Foster Care (EFC) until age 21 and to continue to receive a range of services and supports for a successful transition to adulthood. Since ECF was implemented six years ago, nearly half of Tennessee’s foster care population has chosen to participate upon turning 18.

Tennessee now has a “practice model”—a set of underlying values and an approach to working with families and children—that emphasizes engagement of the family, performs a thorough assessment of a family’s strengths and needs, and involves families and youth in the case planning and decision making process. 97 percent of children who are on a track towards reunifying with their parents are now visiting with their parents at least once per month and approximately 80 percent are visiting at least twice per month. And 82 percent of siblings in foster care are placed together.

The Department’s hiring process has been revamped to address the historically high caseloads that prevented the agency from being able to provide the level of attention that children and families need and deserve. Now, 95 percent of caseworkers are maintaining dramatically lower caseload numbers within the limits set by the Settlement Agreement. And 88 percent of children are getting at least two face-to-face visits from their case workers each month.

The Department now benefits from a strong financial management team that administers the budget effectively, maximizes the draw-down of federal funds, consistently makes a persuasive case for adequate funding for DCS even in tight financial times, and continues to receive positive marks for its fiscal accountability.

DCS has addressed a number of critical concerns about the lack of clear and effective policies and procedures governing the use of psychotropic drugs for children and about the improper use of restraints. The Department has implemented “best practice policies” to limit and monitor the use of psychotropic medications and physical restraints on children in foster care.

The Department has also made progress in combatting the overrepresentation of African American children in the foster care system, including building the capacity to produce and analyze data by race and ethnicity, regularly engaging in efforts to increase the number of African American foster homes, supporting relative caregiver programs in all regions, supporting “subsidized guardianship” as a permanent option instead of terminating parental rights, and recruiting a more diverse workforce.

“A case like this—fighting to help our state’s foster children, a population that is rarely seen or heard—is why I became a lawyer,” explains David Raybin of Raybin & Weissman and a member of the Plaintiff team. Jackie Dixon of Weatherly, McNally & Dixon, also a member of the Plaintiff team, adds: “But as we celebrate the incredible work that has been accomplished here in Tennessee, let us also remember that the multifaceted and challenging nature of child welfare work makes it all too easy for achieved reform to fall apart. We urge government officials and every Tennessean to remain vigilant on behalf of the state’s most vulnerable children.”

The court-appointed monitors agree: “The success of Tennessee’s reform required continued focus and hard work by DCS leadership, front-line staff, private providers, resource parents, and advocates and consistent support for that work from the Governor and Legislature. Sustaining and building upon that success will require no less.”

Children’s Rights and Tennessee co-counsel filed Brian A. v. Haslam on behalf of all foster children in state custody. The Tennessee co-counsel team includes David Raybin of Raybin & Weissman in Nashville; Jacqueline Dixon of Weatherly, McNally & Dixon in Nashville; Wade Davies of Ritchie, Fels & Dillard in Knoxville; and Robert Louis Hutton of Glankler Brown in Memphis. The court-appointed monitors include Steven D. Cohen and Judy Meltzer, Center for the Study of Social Policy; Andy Shookhoff, Attorney; and Paul Vincent, Child Welfare Policy and Practice Group.

For more information, please visit childrensrights.org.

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Fighting to transform America’s failing child welfare, juvenile justice, education, and healthcare systems is one of the most important social justice movements of our time. Through strategic advocacy and legal action, Children’s Rights holds state governments accountable to America’s most vulnerable children. A national watchdog organization since 1995, Children’s Rights fights to protect and defend the rights of young people, because we believe that children have the right to the best possible futures. For more information, please visit www.childrensrights.org.

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