The Arizona Center for Law in the Public Interest, in cooperation with the Phoenix law firm of Coppersmith Brockelman PLC, and the national advocacy group Children’s Rights, Inc., filed a class action lawsuit earlier this year against Arizona’s Department of Child Safety (DCS), the state’s Department of Health Services (DHS). Too many children do not receive needed services, as a result, “all children in state care are subject to an unreasonable risk that they will suffer physical and emotional harm and deterioration while in the state’s care,” the Complaint asserts.
What is refreshing about this particular suit is that it focuses directly on the lack of supportive services for families that could avert the entry of their children into foster care. States are required to make “reasonable efforts” to prevent removal of children from their homes, however, as Marcia Robinson Lowry of Children’s Rights explained to a Congressional committee, “reasonable efforts are not made in hundreds and hundreds of thousands of cases across the country.”
During that hearing, Lowry brought a young boy named Boyd with her to testify as to what he faced while he was in foster care. His story was a truly heartrending one, with multiple placements, and with no assurance that he would ever be reunited with his family, which included siblings who’d been placed in different homes. When Boyd was finished with his harrowing account, Lowry seized the moment to drive home her point, saying:
I want to make clear to the committee that Boyd comes from a very typical family. His mother had some difficulties, not very serious difficulties. Yet, it took her almost 5 years to get her children reunited. She got no help in getting her children back despite the fact that there is a very clear and very strong bond in this family. There was never any question of abuse in this family. And the children fought desperately to come back to her. These are children, of course, who are supposed to be protected by the very fine legislation that Congress passed in 1980 which requires the States to make reasonable efforts to avoid the need for foster care placement whenever possible.1
It seemed, for a time, that Lowry’s organization had lost sight of its mission. For too long, the primary emphasis was on improving conditions for children in foster care, while the notion of them having entered care without just cause had fallen by the wayside. Settlements typically involved assurances that more caseworkers would be hired, that they’d receive better training, and that foster care workers would actually visit the children in care to see how they were faring. It has become abundantly clear over the course of many such lawsuits, studies, surveys, and audits, that this was a task that the foster care caseworkers were loathe to carry out. And, they frequently got away with it, until they entered a glowing report about how a child was doing in state care when, as it turned out, the child had actually died some time prior to the alleged visit.2 A somewhat similar occurance happened to B.T., a Plaintiff in the suit. As the Civil Complaint explains it:
In January 2013, B.T. was returned to the same non-therapeutic group home/shelter that had told the state just two months earlier that B.T. needed a higher level of care. B.T. remained at that shelter for a few more weeks before the state moved him again to a therapeutic group home two hours from his home community. In May 2013, the brother with whom B.T. was adopted in 2008 was placed in a pre-adoptive placement with a family that ultimately adopted him. B.T. felt defeated and said he thought he would never get out of the group home. The following month, B.T. grabbed the steering wheel of a van driven by group home staff, saying, “I want us all to die.” That same day, the state’s therapeutic team coordinating B.T.’s behavioral health services reported that “with a few exceptions, B.T. is doing well over the last 2 weeks.”
The foster care caseworkers are slow to follow up on reports of abuse in foster care – if they investigate at all. The problem isn’t a lack of workers, it is that the foster care system is overloaded with children who do not belong in state care. As the Complaint explains, “DCS is also failing to initiate and complete investigations in a timely manner of reports that children have been abused or neglected while in state care. DES’s own consultants acknowledged in 2012 that foster care workers ‘often have a backlog’ of new maltreatment reports involving children in state custody.” In the final analysis, it comes down to one central point, expressed most eloquently by Professor of Social Work Leroy Pelton:
It is my belief that not only are there many children in foster care who should not have been placed there, but that there are other children who are being wrongfully left in their natural homes. In short, children are being removed from their homes in the wrong cases and being left at home in the wrong cases. Furthermore, it is my belief that if only those children were placed in foster care who actually need it, we would have very few children in foster care.3
The are some modest reforms that would serve well to avert the placement of children in foster care. Chief among them would be helping families that may have fallen on hard times because of the new economy. Often the only service that a family may need is help with a utility bill, or help in obtaining suitable housing. The Civil Complaint makes it abundantly clear that preventive services have been slashed to the bone, while money keeps being poured into foster care.
Arizona has experienced a dramatic increase in the number of children in state foster care. From 2003 to 2012, the number of children in the State’s foster care custody nearly doubled. More recently, Arizona’s foster care population grew from 10,207 as of March 3 1, 2010 to 15,037 as of September 2013, a 47.3% increase. The number of children in out-of-home care grew by another 10% from February 2013 to February 2014. As of September 30, 2014, there are 16, 990 children in state foster care custody who have been placed in out-of-home care.
This huge growth in the state’s foster care population has been fueled by extensive state budget cuts to important support services that had previously helped keep families together. In particular, state funding for DES’s con tracts with community-based providers who offered in-home services to children, aimed at making removal of children into foster care unnecessary, was cut in half in recent years, from $43 million in fiscal year 2008 to under $22 million in fiscal year 2012.
The Complaint continues on to say that there is a severe shortage or services available to children in state care. Far too many children in state foster care custody do not receive the health care services they desperately need and, as a result, “all children in state care are subject to an unreasonable risk that they will suffer physical and emotional harm and deterioration while in the state’s care.”
It is because of the state’s failure to lend any meaningful assistance to families, that so many children who are deemed to be “at risk” enter foster care. The Civil Complaint continues on to detail more of the the system’s numerous deficiencies:
- A widespread failure to conduct timely investigations of reports that children have been maltreated while in state foster care custody. As a result of the state’s deficient investigation practices, children in state foster care custody are placed at an undue risk of suffering physical and emotional harm while in state care.
- A severe and sustained shortage of family foster homes. As a result of this shortage, children in state foster care are emotionally harmed and subjected to an unreasonabl e risk of harm by being placed far from their families and communities, separated from their siblings, and forced to experience disruptive school changes.
- A widespread failure to engage in basic child welfare practices aimed at maintaining family relationships, such as placing siblings together, placing children with their biological parents on a trial reunification basis, coordinating visits between children in state foster care and their biological families, and having caseworkers make regular visits with the children’s biological parents to monitor progress toward family reunification. These failures subject children in state foster care to an unreasonable risk of suffering emotional harm while in state care. Moreover, as a result of these deficiencies, children are subjected to unreasonable delays in being reunified with their families, causing them to suffer further emotional harm.
The lawsuit does address some important Constitutional provisions, as the Complaint explains: “A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from an unreasonable risk of harm once it takes that child into its legal foster care custody.”
Because the foster care system is so overloaded, “the state routinely places children in its care far from their home communities, knowingly interfering with their ability to maintain connections with their families.” What is truly conscience shocking is the very small number of children placed with their parents for a trial reunification. As the Complaint explains:
Another way that states preserve the family relationships of children in foster care is to place such children, when appropriate, with one or both biological parents on a “trial reunification” basis, while maintaining legal custody over the child. Arizona, however, systematically fails to do so. As of September 30, 2014, only 0.21% of children in state custody (36 out of 16,990 children) were placed with their parents on a trial reunification basis.
The Complaint continues on to note that, “As of September 30, 2013, only 0.29% of children in out-of-home care (23 of the 7,875 children) who had a permanency goal of family reunification were in a trial reunification placement.”
It continues on to say: “The State further impairs family relationships by routinely failing to comply with its obligation to make monthly contact with the biological parents of children in state foster care. During the six-month period from April 1, 2014 through September 30, 2014, 1,213 out of 2,528 (48.0% of) parents of children in foster care with a case plan goal of reunification did not receive required visits from a state child welfare caseworker.”
In the final analysis, what the state of Arizona needs to do is reign in those caseworkers who take the defensive position by “erring on the side of safety.” The sheer volume of child removals must be significantly rolled back. The state needs also to identify those children for whom removal from their homes was an inappropriate course of action to take, and return them to their homes with service to help ameliorate the trauma caused by the separation. Finally, Arizona must provide some meaningful oversight of the juvenile court judges who sanctify agency actions by rubber-stamping the removal of children from their homes.
1. Testimony of Marcia Robinson Lowry and Boyd A., Foster Care, Child Welfare, and Adoption Reforms, Joint Hearings, Subcommittee on Public Assistance and Unemployment Compensation of the Committee on Ways and Means and the Select Committee on Children, Youth and Families, U.S. House of Representatives, April 13 and 28, May 12, 1988. (p. 14).
2. Not making required visits and falsifying the associated reports would appear to be a rampant problem. See for example the Civil Complaint in this action at paragraph 72. (“During the period from November 2012 to March 2013, the state failed to arrange for sibling visits between A.A. and his brother, and A.A.’s state caseworker failed to make monthly visits, as required under state policy”). See also Lifting the Veil Blog, “NYC CPS Lawsuit Opens Window on Falsified Case Records,” September 11, 2015; Office of the Inspector General of the Illinois Department of Children and Families, Report to the Governor and General Assembly, January 2015. (“The Inspector General received a complaint alleging that a Department caseworker had falsified four case notes documenting visits with the foster family and had included that false information in interstate compact reports submitted to the court”); David Ovalle, “Former Miami DCF investigator arrested for falsifying records,” Miami Herald, (March 18, 2015); Andrea Ball and Eric Dexheimer, “Dozens of CPS caseworkers caught lying, falsifying documents,” Austin American-Statesman, (January 13, 2015); Nehemiah Flynt, “Foster Care System Falsifies Information & Fails To Protect Children,” Health Impact News, (June 9, 2015); Garrett Therolf, “Problems keep proliferating at discredited private foster care agency,” Los Angeles Times, (April 28, 2013) (discussing case manager who was “not going to get caught up in falsifying any documents”); Joe Schoenmann, “Allegation claims Child Haven numbers falsified,” Las Vegas Sun, (August 13, 2010) (“A former Clark County child welfare administrator charges she was ordered to lie about the number of children at Child Haven to make it appear the county’s Family Services Department was doing a better job of placing children into foster care”).
3. Leroy Pelton, For Reasons of Poverty: A Critical Analysis Of The Public Child Welfare System In The United States, (New York: Praeger, 1989) p. 67.