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Focus on the Law: Foster Care Overhaul in Tennessee

By Sharon Frankenberg,
Attorney at Law

In 2000, a federal class action lawsuit known as the Brian A. Case was filed in Nashville on behalf of all children in state custody.  At that time the number of children in the custody of Tennessee’s Department of Children’s Services (DCS) was more than 9,000.  The lawsuit alleged that these children’s constitutional rights were being violated, causing them irreparable harm.  The first plaintiff in the suit, Brian A. was then a 9 year old boy who had been in foster care for four years and had been living in an emergency shelter near Memphis for the last seven months before the lawsuit was filed.  Another plaintiff, Denise E. was alleged to be 8 years old at the time of the lawsuit and had been removed at birth from her mother and placed into foster care.  The complaint indicates that Denise E. was visited only once by a case manager during the first week of her life and had not received any services to monitor her care, needs or development.

Other systemic problems that the lawsuit identified include that children were bounced from one inappropriate foster placement to another, based upon the existence of slots rather than the needs of the children.  Children were placed in large, orphanage-style institutions and other group settings at one of the highest rates in the nation.  Children were routinely placed in emergency shelters and temporary holding facilities for more than six months at a time.  Children were not adequately supervised by caseworkers who were overburdened and not adequately trained.

To resolve these problems, system-wide reform was needed.  In July 2001, a settlement agreement with significant reforms was reached and approved by the court.  An independent court monitor was put in place to report on compliance.  The monitor’s report of November 4, 2003 found full compliance with only 24 of 136 settlement provisions, so a motion for contempt was filed.  Another settlement agreement was reached.  Multiple settlement agreements have been entered into as some DCS improvement and some worsening was reported.  The situation became scandalous when the Tennessean reported that between January 2009 and July 2012 more than 151 children died in foster care.  DCS admitted that it frankly had no idea of how many more than 151 it really was.  In February of this year, the Commissioner of DCS, Kate O’Day resigned amid the investigation.  The exact number of children who died in DCS custody still remains unclear.

In the most recent development in the Brain A. Case,  U.S. District Court Judge Todd J. Campbell approved the October 2012 Modified Settlement Agreement and Exit Plan in the Brian A. Case.  This order establishes outcomes to be achieved by DCS on behalf of children in custody and their families.  It also sets criterion which will measure these outcomes and determine when the court will terminate its jurisdiction over DCS.  For example, one outcome is that “at least 80% of children entering care who are reunified with their parents or caregivers at the time of discharge from custody shall be reunified within 12 months of the latest removal date.”  And “of the remaining children, 75% shall be reunified within 24 months of the latest removal date.”  These sound like reasonable goals.  Time will tell if DCS is able to achieve and maintain them.  If not, I am sure further court action will continue to try to save Tennessee’s most helpless and endangered, our children.

 

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