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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ABOUT CHILDREN’S RIGHTS
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.

Witnesses Lied In Christopher Lucket Murder Case

A man who has spent more than half of his life in prison has said from the start that he did not murder Christopher Lucket in East Nashville in 1992. Now, Cyrus Wilson, 39, hopes the courts will finally believe him.The star witness, Rodriguez Lee, 35, said he lied on the stand 20 years ago. That, plus a report by the TBI from two years ago says shotgun shells found at the scene don't match the gun that was alleged to be used.

Federal Trial Involving $1 Million Fraud on American Express

Our attorney, Patrick McNally, successfully defended Michael Tangredi accused of bilking American Express of over $1 million dollars in a three month span of time. After an exciting four days of trial that included Mr. Tangredi’s father pleading the Fifth Amendment privilege in response to questions by Mr. McNally, the case concluded with a guilty plea to one count. Mr. Tangredi plead guilty to purchasing a Bentley automobile for $28,000 of funds fraudulently taken from American Express. The remaining seventeen counts will be dismissed at sentencing scheduled for July 7th.

Read more about the case from The Tennessean

• Former restaurant owner’s son faces fraud charges
• Dad pleads the Fifth in son’s fraud trial
• Ex-Nashville restaurateur's son pleads guilty to fraud

Tennessee Supreme Court Allows Defendant's Motion for a New Trial to Proceed

Today the Tennessee Supreme Court released the Opinion in State of Tennessee v. Charles E. Lowe-Kelley reinstating Mr. Kelley's right to appeal his convictions for two murder and nine counts of attempted murder.  Patrick McNally was appointed by the Tennessee Supreme Court to represent Mr. Kelley after the Court granted his pro se Application to Appeal the adverse decision from the Court of Criminal Appeal.  The Court of Criminal Appeals ruled that the first skeleton motion for new trial was a "nullity" and the notice of appeal was untimely.  Mr. McNally argued that the original motion for new trial was valid and the successor motion for new trial filed by newly appointed counsel specified the grounds for relief.  The Supreme Court agreed, reversed the Court of Criminal Appeals, and remanded the case for consideration of the appellate issues.

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Read more more about the case at TNCourts.Gov
To read the State of Tennessee v. Charles E. Lowe-Kelley opinion authored by Justice Janice M. Holder, visit http://www.tncourts.gov/sites/default/files/lowekelleyceopn.pdf.

Supreme Court Rules On Prosecutor’s File Note As Basis For New Trail

The Tennessee Supreme Court last week affirmed the trial court’s judgment and ruled that a prosecutor’s handwritten note that was not turned over to the defendant before the trial of his case was not admissible as evidence and, therefore, was insufficient to support the defendant’s petition for a new trial. [Click here to read the entire article on The Tennessee Bar Association website, and read  more at  the Chattanoogan.com].

Criminal court deadbeats can lose driver's license

Under a new law that critics say unfairly punishes the poor and disadvantaged, the state can now take driver's licenses away from criminal defendants who fail to pay their court costs and fines within a year of their cases closing.

The law's supporters argue it will allow court clerks to collect millions of dollars a year in fines and fees that are largely ignored. In Davidson County alone, $369.4 million of $423.6 million in assessed court costs and fines went uncollected from 2000 to 2010.

"The taxpayers are having to foot the bill for operating the court system," said Tommy Bradley, the acting Davidson County criminal court clerk and brainchild of the legislation. "The purpose of fines and court costs is to pay all that."

Opponents say the law is counterproductive because it will make it harder for defendants to drive to work and make the money they would need to pay the fees.

"This makes it even harder for them to re-enter society as productive citizens and get their life back on track," Metro Public Defender Dawn Deaner said. "We don't live in New York City. We have a good bus system, but it doesn't go everywhere."

Kalen Jones, who is on probation in Davidson County and owes more than $1,000 in court costs, said he drives to work at a factory job.

"I depend on myself," he said, "so I guess I wouldn't have a way to work."

The law took effect last month and applies only to offenses charged after July 2. The legislation is expected to net the state $5.2 million and local governments $6.5 million a year, according to an analysis prepared by the Tennessee General Assembly Fiscal Review Committee.
Deaner said the clerks should stick to the tools already at their disposal because the new law will unfairly punish poor people, including innocents who have their cases dismissed "on costs," which means the charges are dropped but the defendants are still on the hook for some costs.
Garnishing wages and placing liens on bank accounts also are options available to clerks trying to collect unpaid court costs and fees, but Bradley said that requires working with a private collection agency that keeps more than 20 percent of the proceeds. Last year, Davidson County created a "collections court" docket that forces offenders to appear before a judge and answer why they haven't paid their bill and how they'll pay it.

General Sessions Judge Casey Moreland, who presides over the docket, said that while revoking driver's licenses has its drawbacks, the courts have to try something.
"We feel like we owe it to the taxpayers to try to do something to collect that money," Moreland said. "The bad part of it is, when they lose their license, our citation docket just gets bigger and bigger and bigger."
That's because many people who lose their license will continue to drive anyway and get caught. That will mean more charges and more fines, and critics argue it will trap many defendants in a vicious cycle.

A driver's license "is deeply ingrained in the fabric of your daily existence, and to allow a financial situation to determine whether you lose that or not seems unfair," Nashville defense attorney Patrick McNally said. "I think that just pushes them down further."

'Safety valves'

The law includes provisions that would allow judges to stay the revocation of a defendant's driver's license if that person sets up a payment plan with the court. Jonathan Carpenter, who is on probation in Davidson County and owes more than $900 in court costs, said that kind of flexibility will be key.
"I understand they need their money," he said, "but revoking licenses is just going to make it harder to pay and get people stuck in the system."

Judges also can stay a revocation for 180 days "in case of hardship," but travel would be restricted to employment- or illness-related travel.

"There's all kinds of safety valves," said state Rep. Jim Gotto, R-Nashville, and the legislation's sponsor. "It's not just the hammer comes down."

Tennessee isn't alone in its effort to increase collections of court costs and fines. Facing steep budget cuts, state court systems across the country are experimenting with a variety of solutions.

A new Wyoming law will allow an Internet-based system for collecting court costs and fees to be created and also gives the state's Supreme Court the ability to reduce costs and fees for defendants who pay them electronically.

From The Tennessean August 11,2011

Sentencing changes reduce crack cocaine jail terms

Sixteen years ago, Errol Washington was sentenced to more than 20 years in prison on crack cocaine charges -- nearly double what it would have been if it were powder cocaine.

But Washington, 43, may be among hundreds of Middle Tennessee offenders eligible for early release from federal prison after a significant change in federal sentencing policy.

Earlier this month, the U.S. Sentencing Commission drastically reduced sentences for federal inmates convicted of crack cocaine charges. After years of sentencing disparities -- it took 100 times as much powder cocaine to receive similar penalties as for crack cocaine -- the commission is set to release some 12,000 inmates an average of three years earlier.

Tennessee is estimated to have 360 offenders eligible for the sentence reduction, 41 of them in the Middle Tennessee District.

Not all crack cocaine offenders will be eligible, particularly those deemed by the courts to have been involved in a violent crime. A convict must file a motion in court for a resentencing, which will be decided by a federal judge.

U.S. Attorney Jerry Martin said his office still was analyzing potential Middle Tennessee cases and could not comment on the reductions.

Federal Public Defender Henry Martin said the change is a long time coming, but didn't go far enough.

"It's a huge improvement," he said. "What it means is there are people who are serving sentences way too long who will be able to have it reduced to just too long."

1 group punished more

Washington was convicted in 1995 of three drug charges and sentenced to 24 years and seven months in federal prison. Court records indicate that had he been caught with 647.5 grams of powder in Clarksville instead of crack cocaine, he probably would have been released from prison in 2008.

Patrick McNally, a Nashville defense attorney who challenged the crack sentencing laws on Washington's behalf, said the Sentencing Commission finally agreed with arguments he asked the U.S. Supreme Court to hear in the 1990s.

"There really was no greater harm to the public over powder cocaine," McNally said. "The reality was that the enhancement really was sentencing a particular segment of the population, greater than the population that used powder cocaine."

As the violent crack epidemic emerged in the 1980s, Congress passed tough-on-crime laws targeting the drug. In 1986, laws established penalties that could put offenders in prison for up to 20 years for as little as 5 grams of crack cocaine. An offender faces the same penalties, however, for as much as 500 grams of powder cocaine.

Critics have argued for more than 20 years that such harsh sentencing differences disproportionately affected inner-city African-Americans, leading to racial disparities in federal prison. The Sentencing Commission's analysis of eligible offenders appears to back up that assertion: It estimates 85 percent of the convicts who could be released early are black.

"Powder cocaine was favored by middle-to-upper-income Caucasians," McNally said. "Crack cocaine was favored by lower-income African-Americans. ... This 100-to-1 ratio had a real effect of disenfranchising the African-American population."

Money saved

Martin said there also will be a secondary benefit to the sentencing changes: cost savings. The Sentencing Commission estimates that the United States government could save $200 million in the first five years alone once the rules go in place Nov. 1.

The changes significantly increase the amount of crack cocaine to qualify for mandatory minimum sentences. For example, under the old law, it took only 5 grams to be sentenced to a minimum five-year sentence. Under the new rules, it takes 28 grams to be subject to the five-year minimum.

McNally and Martin said the public shouldn't worry about an influx of potentially dangerous criminals back onto the streets. Most of the offenders eligible, such as Washington, are far older than when they were convicted.

"Aging has shown to be a great indicator of reduced recidivism," McNally said.

Indeed, only about 21 percent of the 12,000 offenders nationwide will be eligible for immediate release on Nov. 1, only 56 of those in Tennessee.

From The Tennessean July 28, 2011

Defense in toddler overdose case seizes on lack of tests on sippy cup

Nashville Defense attorney Patrick McNally grilled detectives during cross-examinations Wednesday about alleged shortcomings in the investigation that led to murder charges against Jennifer Elizabeth Hannah.
The woman is on trial in Davidson County Criminal Court on charges that she murdered her 16-month-old daughter in 2008 by giving her prescription drugs.

Read the complete article:  Defense in toddler overdose case seizes on lack of tests on sippy cup via The Tennessean