Throwing foster kids out of court is nothing to gloat about

…and the fact that the Alaska family police agency is gloating at kids’ expense says everything you need to know about that agency. 

A federal judge in Alaska has thrown out one of those typical McLawsuits brought by the latest group Marcia Lowry founded to bring such McLawsuits, A Better Childhood. (ABC is the group Marcia founded after leaving Children’s Rights, which now has effectively rejected Lowry’s approach. She founded Children’s Rights after leaving the ACLU, which now has effectively rejected Lowry’s approach. She joined the ACLU after leaving the New York Civil Liberties Union, which now has effectively rejected Lowry’s approach.) 

Alaska’a family police agency, the Office of Children’s Services, is gloating about this, falsely claiming it's some sort of vindication for them. For reasons discussed below, it is nothing of the sort. 

I wrote a column for the Alaska Beacon criticizing the lawsuit – for the same reasons I criticize almost all the nearly identical McLawsuits Lowry has brought. But unlike OCS, I’m not gloating. That’s because the reason the Alaska McLawsuit would have failed, even had it been allowed to proceed, is not that it was wrong about the problems – its condemnation of Alaska foster care was almost certainly spot on. The problem is that, as usual, the McLawsuit ignored the only solution that has a chance of working: Alaska needs to stop tearing apart families at the fifth-highest rate in America, a rate nearly triple the national average. 

Dismissing the lawsuit won’t advance real solutions – it will just make it easier for OCS to hide the problems. 

Contrary to what OCS implies, the lawsuit was not dismissed because of anything having to do with the merits of the case against the system. It was dismissed only because A Better Childhood and its co-counsel couldn’t show that the children chosen to represent an entire class of foster children, known as “named plaintiffs,” were personally affected by the alleged failures. (This is not the first time there have been questions about how Marcia Lowry has chosen named plaintiffs.) 

The real failing in the lawsuit also is the failing at the heart of a column in the Beacon by Les Gara. Gara writes from personal as well as professional experience. He’s a former foster child as well as a former state legislator. But he condemns OCS only for not doing things the legislature ordered it to do in 2018: lower caseloads, recruit more foster parents, recruit more caseworkers – in other words, the usual. But whether it’s caseworkers or foster parents, you can’t recruit your way out of a crisis caused by tearing apart families at one of the most obscene rates in America. A laser-focus on curbing wrongful removal is the essential prerequisite for fixing any system, especially an extreme outlier like Alaska. 

One constructive solution Gara does embrace is making greater use of kinship foster care. OCS replies that Alaska’s percentage of children placed in this form of foster care is above the national average. Gara replies that the proportion actually appears to be declining. Both are correct. But as Gara points out, “The reality is most states do poorly on foster care work. Comparing bad apples to bad apples isn’t much of a goal.” 

So, what next? A Better Childhood might appeal the dismissal of the suit. A better option would be for better lawyers to start over and bring a better lawsuit.

Child welfare in Tennessee: Here comes the new lawsuit, just like the old lawsuit.

That’s why the new one won’t fix child welfare either 

I have an idea for a great TV game show: Name That Lawsuit!  Here’s how it works: I post excerpts from lawsuits about Tennessee’s “child welfare” system, contestants guess which is from the lawsuit filed 25 years ago and which is from the lawsuit filed last month. 

Ready? You’ll find the answers at the end of this post. So now let’s Name. That. Lawsuit!

Excerpt A: 

Foster care is intended to be temporary, until children can either be reunited with their families or placed in another permanent home; however, children in Tennessee linger in foster care and are moved from place to place without the opportunity for a stable childhood.

Excerpt B: 

While in foster care, children routinely spend years, and often lose much of their childhoods and suffer additional deprivations, as they are moved from one inadequate placement to another without appropriate services, languishing in state custody. 

Excerpt C: 

Children are routinely placed in emergency shelters and other temporary holding facilities for upwards of six months at a time because the state has nowhere else to place them. 

Excerpt D: 

Tennessee’s Department of Children’s Services (“DCS”) warehouses children in spaces which lack the basic necessities of life, including adequate food, bedding, soap, and potable water. Intended as temporary placements, DCS leaves children in these situations for months on end.

It’s not really a game, of course. Rather it illustrates the need to understand why that first lawsuit failed – it’s the same reason the second lawsuit almost certainly will fail: Neither suit addressed the problem at the root of all the others: Tennessee tears apart thousands of families needlessly, often when poverty is confused with “neglect.” 

Because the first suit was silent on that issue, and the litigators even thwarted the state’s own efforts to curb needless entries into care, it was doomed from the start. Indeed, it was like many other failed McLawsuits – almost identical in state after state. 

That’s not hindsight.  Consider the timeline: 

2001: We post the statement of principles for the original Tennessee settlement and compare them to a far more innovative settlement in Alabama. That settlement demanded that the system be rebuilt to emphasize keeping families together. (A member of NCCPR’s Board of Directors was co-counsel for plaintiffs.) At the time we asked: 

If these principles can indeed become reality, which would be the better reality for vulnerable children? 

2005: Alabama’s success is on the front page of The New York Times. Yes, there’s been backsliding in Alabama, too – there always is when the monitoring stops.  But it’s nothing like the collapse in Tennessee.  

2009: Marcia Lowry, who brought the suit while leading the group known as “Children’s Rights,” doesn’t just ignore the problem of wrongful removal, she successfully sues to prevent the Tennessee Legislature from acting to curb it in the county where the problem was worst. And they used some interesting tactics to do it.  

2014: Lowry leaves Children’s Rights and forms another group to bring the same sort of litigation, A Better Childhood. 

2019: All court oversight of the Tennessee system ends. Though Lowry has left, Children’s Rights declares victory. But that year, Tennessee took away 22% more children than it did the year the lawsuit was filed.  

2023: Entries into care are down, but still just as high as they were back when the suit was filed – and that’s now 70% above the national average, even when rates of family poverty are factored in. 

2025: By now, Children’s Rights has dramatically changed course, engaging in advocacy and litigation geared to the only approach that works to keep children safe: doing more to end the needless removal of children. They’ve publicly acknowledged they got some things wrong when Lowry was in charge. 

But over at A Better Childhood, Lowry brings her new Tennessee McLawsuit, which makes all the same mistakes as the old one. 

The new suit makes no mention of wrongful removal, no mention of confusing poverty with neglect, and no mention of the pervasive racial bias in the system – something one would hope would be of particular concern when suing a state where children can be taken from parents whose only crime is “driving while Black.”  

Tennessee’s children deserve a much better system, but that will require a much better lawsuit. It’s one thing to play a game of Name That Lawsuit. But there is no excuse for what A Better Childhood is doing now – playing games with children’s lives. 

Answers: B and C are from the old lawsuit, A and D are from the new one.

A transformation at Children’s Rights

There's lots of good stuff in the latest issue of the Family Justice Journal
But in particular, don't miss the Foreword on Page 8, 

A few years ago, when the group’s rhetoric changed, I was skeptical about whether there’d be a change in substance.  I was wrong. 

For nearly 30 years no group has been in a better position to make real change for the better in “child welfare” than the group known as “Children’s Rights.”  But for much of the group’s history, they squandered the opportunity.   

In state after state, their media-savvy founder and first executive director, Marcia Lowry, became the “Godsource” for reporters – that one source treated reverentially in every story -- as the group brought what I came to call McLawsuits, essentially the same suit each time.  For reasons discussed in an NCCPR publication called “The Children Wronged by Children’s Rights” these McLawsuits almost never made systems better and sometimes made them worse. 

Then Lowry had some sort of falling out with her Board of Directors. She left to form “A Better Childhood,” another organization that churns out the same sort of McLawsuits.  A few years after Lowry was succeeded at CR by Sandy Santana, the rhetoric changed, so did the group’s public policy positions – they even called for repeal of the so-called Adoption and Safe Families Act.  But would the change in outlook be backed by a change in the group’s strategy and litigation?  

The first sign that there would, in fact, be such a change came one year ago when, on behalf of the Minneapolis NAACP, Children’s Rights filed a federal civil rights complaint against the family policing systems in the two largest counties in Minnesota. The complaint deals head-on with needless investigation and surveillance, wrongful removal and racism in these systems. 

And now, Santana has presented a comprehensive agenda for a change in direction.  It comes in the form of the foreword for the latest issue of the Family Justice Journal (See Page 8.) I hope everyone will read it in full. 

Santana begins by telling his own remarkable personal story. Then he forthrightly acknowledges that the approach the organization had taken for decades had been wrong – and things are going to be different.  He writes: 

In the sometimes charged and polarized debate between advocates of parents’ rights and advocates of children’s rights, our organization historically leaned in favor of intervention to “protect” the child. In the years immediately following the passage of ASFA, perhaps blinded by our conviction that no child should grow up with the state as a parent, our child welfare reform litigation campaigns supported the enforcement of that law’s strict timelines for the termination of parental rights. As we know, that law created a new category of legal orphans, intensified the regulation and forced separation of Black communities and families, prioritized adoption over reunification, and does not align with our understanding of treatment, recovery, trauma, and the critical importance of t the parent-child bond. 

Over the past decade, under new leadership, we have reflected deeply on how the impact litigation cases we brought on behalf of kids in state custody and the reforms they delivered, did not always support the preservation of families – particularly Black families. Through this process, we listened closely to the voices of survivors, who not only described the deep trauma they experienced within the system but from being separated from their parents and

uprooted from their communities. We also heard from mothers who endured the terror of constant surveillance and the ineffable pain of losing their children. 

Those conversations profoundly transformed the organization’s long-standing conception of children’s rights. They made it clear that children do not exist in a bubble of autonomous rights disconnected from their families, communities, and cultures. 

The essay lists a series of concrete actions CR has taken or will take to back up these words, including: 

We are partnering with the Family Justice Law Center to explore constitutional challenges to warrantless home entries, invasive strip searches of children, and “emergency

removals,” often carried out in non-exigent circumstances without parental consent or due process protections. … 

We are co-leading with JMACforFamilies a collaborative of advocates, mandated reporters, legal professionals, researchers and lived experts to develop new mandated reporting policies and practices in New York State to prevent unnecessary family surveillance and separation. … 

We are exploring impact litigation to give teeth to the “reasonable efforts”* standard. 

And, perhaps most promising: 

In states where we have custodial consent decrees in place, we are using our leverage to press for front-end policy and practice changes that lead to more successful reunifications, increased extended family kinship placements without terminating parental rights, and driving toward a radically smaller foster system … 

That suggests some hope for the children of Michigan where the old leadership of CR, under Marcia Lowry, negotiated a particularly awful decree. 

Lowry herself, however, continues to do damage. A Better Childhood still does the same old harm in the same old way. 

As for that publication, “The Children Wronged By ‘Children’s Rights,’” The full name is “‘The Children Wronged by Children’s Rights’ (and ‘A Better Childhood’ too’”), it’s been updated to put the Children’s Rights criticism in the past tense.  I hope it always stays that way.

*Federal law requires family policing systems, a more accurate term than “child welfare” systems to make “reasonable efforts” to keep families together.  The law is routinely ignored.

The failure of the child welfare McLawsuits, Part One

There have been years of court hearings, orders and, in one case, even a settlement and a declaration of victory.  But things in Texas and Tennessee are as bad, or worse, than ever. 

Instead of making the dreadful Texas "child welfare" system better,
"Children's Rights" and "A Better Childhood" set off what amounts to
a giant game of whack-a-mole.

News from Texas and Tennessee in recent weeks illustrate the futility – or worse – of those massive McLawsuits brought against “child welfare” systems, mostly by two groups, the one founded by Marcia Lowry (with a lot of help from corporate raider Carl Icahn) called “Children’s Rights” (CR) and the one founded by Marcia Lowry when she split from Children’s Rights and formed a group called “A Better Childhood.” 

I call them McLawsuits because they’re like fast food franchises – nearly identical massive class-action lawsuits that say pretty much the same things, call for the same micromanaging remedies, and, most important, ignore the problem at the root of all the others – the needless removal of children, often when poverty is confused with neglect. 

That’s why, in most cases, they accomplish nothing, and in some cases they make things worse.  In Michigan, where CR has a consent decree, Prof. Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan School of Law says the best thing CR could do would be to get out. 

With Lowry’s departure, CR changed a lot and for the better.  They now have an outstanding public policy arm that has joined groups like NCCPR in calling for progressive changes such as radically curbing the use of institutions and facing up to the racism that permeates family policing.  But that can actually put the public policy arm of CR at odds with the litigation arm. 

For example: The public policy side has wisely joined NCCPR and other family advocacy organizations in condemning the so-called Adoption and Safe Families Act - putting it way ahead of other big, mainstream “child welfare” groups.  But CR’s lawsuit complaints in Texas and in Michigan call for stricter enforcement of ASFA! 

So let’s see how that’s all been working out lately.  In part two, we look at Tennessee.  We’ll start today with Texas: 

When Lowry “divorced” CR to create A Better Childhood each group got custody of some of the McLawsuits underway at the time of the split, with one exception.  They share custody of the one in Texas. 

The one thing the McLawsuits do well is offer thorough, vivid descriptions of how awful “child welfare” systems typically are.  In January 2016, I described federal judge Janis Jack’s first decision in favor of CR as a guided tour of the hellscape of Texas foster care.  Not that this was a surprise.  Nearly 12 years earlier, NCCPR documented the same hellscape in a comprehensive report on Texas “child welfare” – and that report relied on the work of  Texas journalists and advocates who had come before us.  

There are two differences between our report and CR’s McLawsuit: 

● We proposed better solutions.

● We didn’t have a court to enforce those solutions. 

CR and A Better Childhood have no such excuse.  Despite all the might of these two organizations, their high-powered law firm partners and a sympathetic judge, Texas “child welfare” is still a hellscape – as we predicted it would be in 2016. 

In fact, what CR and A Better Childhood set in motion in Texas is a giant game of whack-a-mole.  The lawsuit demanded that hellacious institutions be fixed up or shut down.  Since institutions are largely unfixable, some of them shut down.   But, because the lawsuit did not demand that fewer children be taken away, there was no place to put the kids who used to be consigned to those horrible institutions. 

So they were housed in state family policing agency offices. 

There followed demands to stop stashing the children in offices. 

So they were forced into hotels – including hotels known to be centers of sex trafficking. 

These children are known as “children without placements” and, as Texas Public Radio explained, 

“… children have died, they were sex trafficked and they were impregnated while under [that] status. … if parents behaved the way [the Texas family police agency] does with [these] kids … multiple judges TPR spoke to said they would remove its kids.” 

So surely it should be obvious by now to Children’s Rights and A Better Childhood that they need to go back to the drawing board and seek a settlement to their McLawsuit built around safe, proven ways for Texas to stop taking so many of them in the first place.  

And yes, Texas takes a lot of kids.  Officially the state’s rate-of-removal is low, but that’s only because Texas may make more use than any other state of “hidden foster care” – off-the-books placements that are not reported in official figures.  If they were, odds are the number of children reported as entering foster care would nearly triple. 

The Legislature steps in 

One group gets this -- albeit not the one you might expect: The Texas Legislature.  They passed a series of bills to curb the vast nearly unchecked power of the family police to needlessly tear apart families.  If those new laws are allowed to remain on the books unchanged, they, alone, won’t solve all the problems.  But their enforcement is an essential prerequisite to solving all the problems – since that will open up spaces in actual family foster homes for the children who really need them.  

Opening those spaces alone won’t be enough.  Those foster families, and birth families whose children can safely remain at home or be reunited, are going to need far more support in order to care for children, some of whom were damaged by actual abuse, almost all of whom were damaged by the abuse inflicted on them by being forced into the hellscape of Texas foster care. 

Instead, of course, there is a media-fueled campaign against the new laws. They are being scapegoated for every horror story – even horror stories that took place before the new laws took effect.  Apparently, those wedded to the take-the-child-and-run status quo want Texans to believe that, before the new laws, there were no horror stories.  No child ever died of abuse because they all were rescued and lived happily ever after in the rainbows and unicorns land of Texas foster care.  

Unfortunately, a lot of media seem to be buying it – especially in San Antonio, which always has been the most trigger-happy city in Texas when it comes to taking away children. 

The attacks against the new laws are spearheaded by exactly whom you would expect: the Texas chapter of Court-Appointed Special Advocates (CASA).  Study after study has shown that CASA makes outcomes for children worse – and one of those studies was commissioned by Texas CASA itself.  

That study found that when Texas CASA gets involved:

“Overall, children appointed a CASA have significantly lower odds than children without a CASA of achieving permanency.” [Emphasis added.]

Compared to children not burdened with a CASA on the case, Texas foster children with CASAs were:

● Less likely to be reunified with their own parents.

● Less likely to find permanence in the form of guardianship by a relative.

● More likely to “age out” of foster care with no home at all.

Yet now, when Texas CASA – a group that should have the least credibility of any organization in Texas – leads a smear campaign against the first changes in decades that offer real hope to children many media buy their snake oil and beg for more. 

Wouldn’t it be great if there were some other big organization, also beloved by Texas media, that could step in and set the record straight; say, an organization that is on record as supporting reforms much like those passed by the Texas Legislature?  An organization that is revered by the same Texas media who smear the Legislature’s reforms – almost all passed with strong bipartisan majorities – as part of some vast right-wing conspiracy? 

Oh, wait, there is such a group: It’s called Children’s Rights.  But they’re still too busy playing whack-a-mole.

Click here for part two, in which we discuss CR's failure in Tennessee

NCCPR in Times of Northwest Indiana: The last thing Indiana child welfare needs is another McLawsuit

Three months ago, NWI Times reporter Giles Bruce documented the problem at the heart of Indiana’s child welfare failure: The state routinely confuses poverty with “neglect.” That in turn leads to Indiana tearing apart families needlessly at one of the highest rates in America.

Unfortunately, it appears that Marcia Lowry never read Bruce’s story, because she’s brought a lawsuit against the Indiana Department of Child Services that ignores this issue. As a result, the lawsuit could end up making Indiana child welfare even worse. It’s not that DCS doesn’t deserve to be sued — but this isn’t the way to do it.

Read the full NCCPR Guest Commentary here.

And for more about the failure of these suits, and links to data cited in the commentary, see NCCPR’s publication, The children wronged by “Children’s Rights” (and by “A Better Childhood,” too).

The last thing Oregon child welfare needs is another McLawsuit

The track record of the group bringing the suit suggests there’s a good chance it will make the state’s horrible child welfare system even worse.

            Never assume that things can’t get worse for the vulnerable children of Oregon.  The horrors of the Oregon child welfare system have been documented extensively. The real reason for those horrors, the state’s obscene rates of taking away children and trapping them in foster care – is mentioned only occasionally, except on this blog, of course.

            And now, compounding all the other problems, the system is on the receiving end of a lawsuit that stands almost no chance of making the system better – and a good chance of leaving it even worse.

            The lawsuit was brought by A Better Childhood, a group that brings these sorts of McLawsuits across the country.  Marcia Lowry founded A Better Childhood (ABC) after leaving another nearly identical group she founded (with a lot of help from corporate raider Carl Icahn) - the group that calls itself Children’s Rights (CR). That group brings the same sorts of McLawsuits - though at least with CR, there’s been a little bit of improvement in the years since Lowry left.

            The problem is not that the Oregon system doesn’t deserve to be sued.  Of course it does; it’s every bit as awful as this lawsuit says it is, and then some.  The problem is not that it’s a bad idea to sue failing child welfare systems. It’s an excellent idea. But you have to bring the right kind of lawsuit.  This isn’t it.

           Like the other McLawsuits filed by Lowry at ABC and before that at CR, this is a lumbering document that seeks puny bureaucratic remedies, a caseworker hiring binge and, of course, another foster parent recruitment campaign.  If Oregon is lucky this will simply create the same lousy system only bigger. That’s bad enough.  But in several cases these lawsuits actually have made systems worse.

            That’s because Lowry has shown no interest in keeping children out of the system in the first place, only in “fixing” foster care once they’re already in.  But as the repeated failure of her lawsuits and the success of an alternative approach have proven, the only way to fix foster care is to have less of it. 

           So, in an interview, Lowry declares that "The big problem is that Oregon has failed to develop specialized placements or even enough placements for kids in care.” 

          That's wrong. 

          The big problem is that Oregon takes away too many children – tearing them from their families at a rate more than 40 percent above the national average and holding them in foster care at a rate  more than 65 percent above the national average.

          If Oregon simply took away children and held them in foster care at a rate no worse than the national average, the number of children in "placements" would plummet and the "shortage" of placements would disappear.  

          Oregon does have enough placements – but many of them are being taken by children who don’t need to be in foster care.  Even the lawsuit itself makes that clear.

Judging by the limited information in the lawsuit Complaint, in several cases, the named plaintiffs in this suit could, in fact, have remained safely in their own homes had the families received the right kinds of help.  Yet even if this lawsuit is completely successful there is nothing in it that would make it any more likely that this help will be provided to children like them in the future.

But perhaps the best measure of how out-of-touch Marcia Lowry is with best practice in child welfare, and how alarmed advocates for children are about the damage she can do, came when she brought the latest in a long line of lawsuits against the system in in New York City.  The city is unusual in the fact that there is a network of high-quality providers of counsel for parents and for children.  Those providers, the parents’ lawyers and the children’s lawyers – came together, standing united to oppose her pointless, harmful lawsuit.

Full details concerning how these McLawsuits fail are in NCCPR’s publication The Children Wronged by “Children’s Rights.”  But here’s a brief overview of what’s happened across the country.

The track record

            ● In Michigan, Lowry’s lawsuit settlement requires the state to cut caseloads – just as is demanded in the Oregon suit.  But instead of requiring Michigan to do that by controlling needless removal of children and bolstering programs to keep children out of foster care, the settlement allowed Michigan to slash its already meager funding of prevention and family preservation in order to fund a child abuse investigator/foster care worker hiring binge.  And that’s exactly that the state did.

Michigan also cut basic assistance to poor families – and said it wasn’t a problem because they also were hiring more child abuse investigators (thanks to the settlement).

The Michigan settlement also has led to the expulsion of hundreds, perhaps thousands of children from the homes of grandparents and other relatives because those relatives were unable to meet pages of hypertechnical licensing requirements, many of them unrelated to health and safety.

● In Tennessee, CR successfully strong-armed the legislature into repealing a law that took a tiny step toward balancing the profound incentives judges face to take children needlessly with a small incentive to think of better options.  CR’s tactics included a lawsuit that raises serious questions about how they chose the children who served as “named plaintiffs.”

            ● In Georgia, CR sought to undermine alternatives to full-scale child abuse investigations that have reduced entries into foster care and demonstrably improved child safety.  Indeed, the monitor for CR’s own settlement in Georgia declined to help CR in this effort.

            Also in Georgia, Mother Jones reports, the state did what Michigan did: "cut spending on child care and put the money into child protective services in the wake of a lawsuit against the state over the mistreatment of children in foster care."

● In Massachusetts, it appears that several of the “named plaintiffs” in CR’s McLawsuit were children who could have remained safely in their own homes had the right kinds of help been provided.  But the lawsuit said nothing about providing that help.

And now, Oregon

            The same is true in the Oregon suit.

            ● In the case of the Oregon children the suit calls Wyatt and Noah, there was no allegation that either child was abused. Rather, there was allegedly drug abuse in the home and the father was charged with domestic violence against the mother. In other words, the children were torn from their mother because she was, herself, a victim of domestic violence.  In New York, that would be illegal – because it is exceptionally harmful to children.

            It’s illegal because of a class-action lawsuit – done the right way.  (NCCPR’s Vice President was co-counsel for the plaintiffs.)

As a result, in New York City cases such as this are supposed to be handled by removing the abuser, not the children, and then giving the mother all the support she needs so she will never feel a need to turn to the abuser again.  (Of course, the city does not always live up to the settlement, but the system has improved significantly since implementation began.)

But does Marcia Lowry’s lawsuit call for stopping Oregon DHS from taking away children because their mothers have been beaten? Of course not!

            ● In the case of Kylie and Alec, the issue was the mother’s alleged neglect and substance abuse.  But DHS actually admits it took away the children “because DHS was unable to locate a substance abuse program for her.”

            So does the Oregon lawsuit’s list of remedies include demanding substance abuse treatment on demand so no children will ever again have to undergo what happened to Kylie and Alec for lack of drug treatment?  Of course not!

            ● A cascade of horrors for Naomi began when she was taken away because her father wouldn’t allow her to receive therapy for mental health problems.  If the description in the lawsuit Complaint is correct, there is no question she needed the therapy.  There also is no question that, even without the therapy, the state of Oregon put her in far more danger.  Indeed, were there a deliberate, calculated plot to traumatize this child, (and, for that matter, the other named plaintiffs) they plotters could not have done better than Oregon DHS did.

            And the father was not the only option.  Naomi asked to live with her mother in Idaho. The court refused.  When Naomi ran away and went to Idaho herself – to live with her mother – she was forced back to Oregon.

            So, does the lawsuit include demands that Oregon beef up Wraparound services, in which therapy and other help is brought directly into the home, and everyone is trained to engage with entire families - so that, in cases like this, parents would be far more likely to accept the help?  Of course not!

            ● And then there is the story of Norman, who was taken from his father.  Only in the last paragraph of the description of what happened to Norman does the lawsuit let us in on the fact that they are now hoping that, after Norman “ages out” of foster care at age 18, he can be placed with his mother.  Why wasn’t that ever considered before? The lawsuit doesn’t say. It does mention, however, that the mother had substance abuse and housing issues.

            So, does the lawsuit demand that Oregon address family housing problems instead of tearing apart families?  Of course not!

          

There is a far better way to sue a child welfare system. The Alabama lawsuit, R.C. v. Hornsby emphasized rebuilding the system to emphasize safe, proven programs to keep children together.  (The suit was brought by the Bazelon Center for Mental Health Law whose legal director is a member of NCCPR’s Board of Directors.)  Though there’s been backsliding since this New York Times story was written,  this more recent account, from the Arizona Daily Star makes clear that Alabama is still, relatively speaking a national leader in child welfare.

            You can get a good sense of the difference between innovative litigation that works and a Marcia Lowry McLawsuit just by comparing the “Statement of Principles” section of a typical McLawsuit to the comparable section of the Alabama suit.  You can do that here.

            And though Lowry’s Oregon suit mentions all sorts of other reports and even past lawsuits about that state, it omits the effort to bring the Alabama reforms to Oregon in the 1990s – an effort that failed largely for lack of an enforcement mechanism.  It’s all discussed in the epilogue to this excellent story from Oregon Public Broadcasting and the Salem Statesman Journal.

            So don’t let anyone tell you it’s not possible to use litigation to curb the needless removal of children from their families.  The Alabama suit and the New York City suit concerning domestic violence both show that you can.

Diversionary tactics

The whole Oregon lawsuit is written in a way that appears designed to steer people away from thinking in those terms – not that it takes much steering in Oregon, where, for example, the Oregonian has kept the issue of the state’s high rate-of-removal out of the discussion.

           

● Right off the bat the lawsuit describes children in Oregon foster care as “revictimized.”  In some cases, of course, it’s true.  But in others, children are not victimized until they are placed in foster care.

● In presenting a list of provisions of federal law Oregon allegedly violated, the lawsuit makes no mention of the requirement in federal law to make “reasonable efforts” to keep children out of foster care in the first place.  The Complaint mentions “reasonable efforts” only in the context of the need to “achieve permanency” after a child is in foster care. 

            ● Child welfare systems make terrible mistakes in all directions.  But while the complaint goes into great detail about the abuse suffered by children left in or returned to dangerous homes, it is vague about the circumstances in the homes of children who probably could have stayed in them with the right kinds of help.    

            The lawsuit also errs in claiming that the Oregon child welfare system is “underfunded.”  On the contrary, Oregon spends on child welfare at one of the highest rates in the country – a rate nearly 50 percent above the national average.

            Part of the reason for this is explained by the one useful purpose served by the entire lawsuit: It exposes the fact that Oregon’s practice of warehousing children in out-of-state institutions is even worse than we thought.  (See pages 57 to 59).  Ten Oregon children are warehoused at institutions run by a for-profit chain that’s so awful a financial analyst – yes, a financial analyst -- said that its very existence “makes the world a worse place…”

            But in child welfare, the worse the option, the more it costs.  These out of state institutions cost DHS anywhere from $275 to $803 per day per child.

            So no, Oregon child welfare isn’t underfunded. Oregon child welfare simply throws away money as it throws away children.

The local partner

            The one hope in all this comes from one of the local partners Oregon chose for this suit, Disability Rights Oregon.

            In the one and only news story I know of concerning this lawsuit that even mention’s Oregon’s high rate of removal, from the Oregon Capital Bureau, an attorney for Disability Rights Oregon at least shows DRO is aware of the problem, adding that his group sees the lawsuit as an “opportunity to transform” the foster care system.

            The problem is, in order to win a settlement that actually does this, DRO will have to fight not only the state, but also its own partner.

            The more likely result is a lose-lose situation for Oregon’s most vulnerable children.

If the lawsuit is thrown out of court, Oregon DHS will treat that the way Donald Trump treated the Mueller report –as “vindication” when it would be nothing of the sort.

            But if ABC wins or settles, expect decades of court hearings, 150-page monitoring reports that measure processes instead of outcomes, motions, counter-motions, and other pointless maneuvering, as the Oregon child welfare system gets bigger but no better. 

That’s best case.  Worst case, Oregon diverts funds from child abuse prevention family preservation and basic support for poor families in order to fund a worthless settlement.

            Marcia Lowry’s track record suggests she’s have no problem with that at all.