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.

“Child welfare” and racism: Children’s Rights steps up

For the first time in its history, the group uses litigation to take on racism, needless surveillance and wrongful removal.  It’s not a full-scale lawsuit, but it’s a good start 

From Children's Rights' page discussing their civil rights complaint in Minnesota

Last week, in a post about the landmark lawsuit against the New York City family police agency for its abuses of children and families during investigations, I noted that Ira Lustbader, litigation director at Children’s Rights said “now is the time” for such litigation.  I pointed out that in its entire history, Children’s Rights had never brought such litigation, insisted it couldn’t be done, and sometimes even stood in the way of such efforts.  So I asked a question: 

Since you say “now is the time,” Ira, and now that other lawyers have shown you how it’s done, when are you going to start bringing lawsuits like this? 

I’ve got to admit, he came up with a good answer.  

It’s not a full-scale class-action lawsuit,  but it’s a good start:  Children’s Rights is representing the Minneapolis NAACP in a formal complaint to the federal Department of Health and Human Services Office of Civil Rights. The Complaint alleges that the two largest counties in Minnesota, Hennepin and Ramsey, engage in systematic, rampant, racially biased needless investigation and surveillance of families and needless removal of children. 

In recent years, CR has done excellent public policy work – but it’s stuck to the same stale litigation that rarely did any good and often did real harm.  But this time, the policy arm and the litigation arm of the organization worked together.  And this time, they’ve brought good litigation in the right place at the right time. 

The right place 

Minnesota has a particularly ugly record when it comes to family policing.  Year after year the state tears apart families at a rate more than double the national average, even when rates of child poverty are factored in.  The NAACP/CR Complaint reveals how much of that is driven by racial bias.  For example, in Minnesota Black children are twice as likely to be thrown into foster care as white children.  Biracial or multiracial children are seven times more likely than white children to be torn from their families. 

Minnesota’s record of racial disparity in investigations and foster care is worse than the national average, and the disparities in Hennepin and Ramsey Counties are worse than the state average.  

The right time 

Although Minnesota’s dismal record dates back decades, a key part of the reason things remain so awful is the Minneapolis Star Tribune.  Once, it was a source of some of the nation’s most insightful commentary on these issues.  But more recently it has descended to what the legendary journalist David Simon calls “Pulitzer sniffing.”    

Twice in recent years, the Star Tribune has exploited horror stories in an apparent effort to set off foster-care panics, sharp sudden increases in the number of children taken from their homes. The first time they succeeded.  But now they’re having a harder time.  Lawmakers are catching on to the fact that the deluge of false reports, trivial cases and poverty-confused-with-neglect cases encouraged by the Star Tribune actually contributes to the horror stories.  Even the Star Tribune quoted Kelis Houston, an NAACP committee leader and founder of the family advocacy group Village Arms, when she told a legislative committee:

"The worst thing Minnesota can do is keep doubling down on its failed approach," said Houston, adding that tragedies continue to occur because caseworkers are overwhelmed by "trivial cases." 

A Complaint like this can only reinforce lawmakers’ skepticism and help them understand what’s really needed to keep children safe. 

Three key causes 

The Complaint zeros in on three likely contributors to Minnesota’s dismal record:

 ● Structured Decision-Making.  This system of questionnaires filled out by investigators is essentially predictive analytics without the computers.  Reports in three states have linked SDM to increased removals of children, and analyses in Washington State and Michigan found racial bias in the SDM questionnaires. The Minnesota Complaint cites additional scholarly critiques of SDM, and offers these specific examples from the SDM Safety Assessment and Family Risk Assessment questionnaires in Minnesota. It’s relevant everywhere since SDM is so widely used. 

From the complaint: 

The SDM SA’s consideration of a caregiver’s inability to meet the child’s immediate needs for food/shelter, lack of water or utilities, and deeming space heaters for heat as unsafe, are characteristics that are proxies for both race and socioeconomic status. Minnesota’s use of these factors to support a child’s removal and/or ongoing separation due to alleged neglect discriminately and disproportionately impacts Black families who are overrepresented in Minnesota’s child welfare system for neglect-related allegations. 

Similarly, the SDM FRA’s consideration of prior assigned reports (even if not substantiated), prior CPS history (even if not substantiated), and whether either caregiver was abused as a child, are proxies for race and socioeconomic status and discriminatorily and disproportionately impact Black families in Minnesota, and in Hennepin and Ramsey counties, who experience child welfare system involvement more frequently, and are more likely to score higher under those categories. 

The specific inclusion of unsubstantiated reports and CPS histories directs the weighting of known discriminatory and disproportionate practices against Black families, as these categories by their very terms did not involve finding safety considerations justifying investigation and/or removal. 

The SDM FRA’s consideration of a household with three or more children as a maltreatment-predicting characteristic also serves as a proxy for race and has a discriminatory and disproportionate impact on Black families who are more likely to have three or more children. 

● Misuse of “emergency” removal power.  You know how family police agencies love to say “We don’t decide if a child is removed from the home, a court has to approve everything we do”?

It’s a lie. 

In every state, the police and/or the family police have the power to remove children from their homes on the spot without so much as calling a judge.  In Minnesota the power rests with law enforcement – and they abuse it constantly. All law enforcement officers need to do is think that a child’s “health or welfare is being endangered by the child’s ‘surroundings or conditions,’” or “reasonably believes” that such health or safety “will be” endangered. 

So it’s no wonder that, as the Complaint points out, between 2014 and 2019 half of all removals of children in Hennepin County took place that way.  In Ramsey County, it was 78%.  

● Lack of services to help families.  When your only tool is a hammer, every problem looks like a nail.  Like most places, the Minnesota family police have quick and easy access to tearing apart families – everything else is in short supply.  So children and families get hammered. 

The complaint calls on the Office of Civil Rights to launch a full investigation into the state’s “discriminatory actions.”  The office should do that.  In fact, they should do more.  In addition to looking at the enormous bias against Black families in Minnesota, they also should examine what data suggest is even more enormous bias against Native American families.  No need to wait for another Complaint! 

As for Children’s Rights, for the first time in decades, I’m looking forward to seeing what their litigation arm might do next. 

The failure of the child welfare McLawsuits, Part Two

The group that calls itself "Children's Rights" touts its Tennessee McLawsuit 
as a huge success.  The 12-year-old in this photo, obtained by
Nashville television station WTVF, might disagree. You can watch their story here.

By the time the group that calls itself “Children’s Rights” was done with Tennessee, the state was taking away 24% more children than it was when the suit was filed.

 Now the system is in chaos, a family was torn apart for “driving while Black” and a 12-year-old was hogtied in a new makeshift institution.  If this is success, what does it take for CR to declare one of its McLawsuits a failure?

Part one of this post deals with the failure of the massive McLawsuit brought in Texas by the groups calling themselves “Children’s Rights” and “A Better Childhood.”  This part deals with a similar failure by Children’s Rights in Tennessee.

In 2000, the group that calls itself “Children’s Rights” filed one of its McLawsuits -- massive, similar class actions the group has brought across the country for decades -- in Tennessee.  Court supervision didn’t fully end for 19 years.  To read the account on CR’s website you’d think their suit turned a dreadful, failing “child welfare” system into a shining success story.  According to CR: 

In 2017 Jim Henry, former DCS Commissioner, reflected, on the lawsuit’s success: “…[W]e deserved to get a lawsuit. The fact is, we’re a much better system now. We’re better off for it, the kids are better off and I think the taxpayers are better off.” 

I can think of one 12-year-old who might disagree with CR’s glowing assessment.  He’s the boy you can see in the photo at the top of this post, which comes from some outstanding investigative reporting by Nashville television station WTVF; the boy who was hogtied.  You can watch the full story here. 

CR claims that, thanks to its McLawsuit “The use of grossly inadequate emergency shelters and large orphanage-style institutions has ended.”  But just four years later, the Tennessee Department of Child Services, their family police agency (a more accurate term than “child welfare” agency) has opened a bunch of new ones. 

It was in one such place that the 12-year-old was held face down, handcuffed and hogtied – after DCS specifically changed its policy to allow the handcuffing of children in these places. 

Of course, any system can have an isolated failure.  But what’s happening in Tennessee is not isolated.  Just four years after CR declared final victory and got out, story after story after story after story documents a system is in chaos. 

The institution where that 12-year-old boy was hogtied is one of an entire network of new institutions the state opened – because (don’t stop me if you’ve heard this one before) children were sleeping in state offices and DCS was getting bad press about it. 

WTVF reports on what DCS’ own inspector, Brenda Myers, found – and what happened to her:  She wrote a memo documenting the horrible conditions.  She says her boss, the DCS commissioner told her to rewrite it to cover up the truth.  She reluctantly did it – and immediately quit.  Watch the story here. 

As the story notes, DCS came up with a solution to the problem of embarrassing inspections of hideous facilities – they stopped the inspections. 

And remember how, in Texas, Texas public radio reported this about kids in makeshift placements? 

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.” 

WTVF put the same question to the whistleblower in Tennessee: 

NewsChannel 5 Investigates asked, "If you went to a private home and saw conditions like what would you do?"  Myers responded, "We would recommend removal." 

As noted above, these hellhole institutions were created because Tennessee children were forced to sleep in offices.  They were held in offices because there was no place else to put them.  Why is there no place else to put them?  A clue can be found in the case of that hogtied 12-year-old. He was not taken away because he was beaten or tortured or sexually abused.  WTVF obtained an internal DCF memo that said the boy was institutionalized because "mom was unable to care for him and did not have the resources to do so." 

Also in Tennessee, in the midst of having no place to put kids, the Tennessee family police agency rushed to take away the children of parents whose only crime could be boiled down to Driving While Black. 

No surprises here 

You could see it all coming decades ago when CR first brought its Tennessee McLawsuit.  At the time, we simply compared the “Statement of Principles” in the Tennessee settlement to the one in one of the few relatively successful class-action lawsuits against a “child welfare” system, the one in Alabama, and posed a simple question: “If these principles can indeed become reality, which would be the better reality for vulnerable children?” 

CR didn’t just ignore the problem of wrongful removal, CR stepped in and successfully sued to prevent the Tennessee Legislature from acting to curb it in the county where the problem was worst.  And they used some pretty disturbing tactics to do it. 

So it should be no surprise that in 2019, when the lawsuit and the court monitoring ended,  Tennessee took away 24% more children than it did when the lawsuit was filed in 2000.  So it’s no wonder CR’s claims of success don’t always hold up well. 

According to CR: 

DCS has dramatically reduced its historical over-reliance on non-family institutional placements … The percentage of Tennessee children in foster care placed with families has risen and has been maintained at approximately 88 percent. 

Not anymore.  While the national average has gotten better, Tennessee has gotten worse.  As of 2021, the most recent year for which comparative data are available, and just two years after CR declared final victory, 16% of Tennessee foster children were institutionalized – a rate nearly 80% above the national average.  That was before DCS opened institutions like the ones exposed by WTVF.  And Tennessee uses the least harmful form of foster care, kinship foster care, at a rate barely more than one-third the national average. That’s probably one of the worst records in the country. 

Tennessee also illustrates the ongoing disconnect between CR’s excellent public policy work and its lousy McLawsuits.  The public policy arm has done outstanding work questioning things like the mad rush to terminate children’s rights to their parents (a more accurate term than termination of parental rights) to push them into adoptive homes.  But in Tennessee CR brags that, thanks to its litigation, 

DCS is consistently providing more and faster permanent adoptive homes for children in foster care. 

Yes, there’s always backsliding 

Even in those rare cases where good lawsuits lead to real accomplishments, some backsliding is probably inevitable once the court-appointed monitors pack up and leave and the courts let the family police agency off the hook. 

For decades, we’ve cited the lawsuit and subsequent settlement in Alabama as a model. (A member of NCCPR’s Board of Directors was co-counsel for plaintiffs.)  We’ve pointed to a front-page story in The New York Times – but that was 2005.  More recent news stories still show a system that is far less bad than most.  (To be clear: There are no good systems; the continuum runs from bad, to worse, to horrible, to hellscape.)  But there has been backsliding in Alabama.  There’s even another lawsuit – brought by, among others, Children’s Rights – specific to children held in the worst placements of all “residential treatment centers.” 

In New York City we often cite the lawsuit that stopped the city from taking children from parents, almost always their mothers, just because the mothers are survivors of domestic violence.  (NCCPR’s Vice President was co-counsel for plaintiffs in that one.)  That suit never completely stopped the practice – but it curbed it.  What it did not do was stop the New York City family police agency from putting these mothers under onerous, sometimes crippling surveillance.  That’s why anotherlawsuit has just been filed to stop that practice. 

But Alabama remains a significantly less bad system than it was before the lawsuit.  And, battered women in New York City are far less likely to have their children torn from their arms than they were before that lawsuit. 

In contrast, what little progress there may have been in Tennessee – if any - collapsed with breathtaking speed.  

So the real lesson here is: Bring better lawsuits to begin with – so when the backsliding happens it will be slower and take longer to erode the progress.  And every year that progress is maintained is one year that children are safer, both from abuse inflicted by their own families and abuse inflicted by the family police. 

Lessons from other McLawsuits 

There are four CR McLawsuits that have been followed by system improvements.  But correlation is not causation.  In two of the four locations, the McLawsuits got in the way of progress for decades.  

In all four locations, New York City, New Jersey, Connecticut and Washington, D.C. the key to improvement (not success, these are less bad systems) was the same: Sooner or later, sometimes after decades, leaders were named to the family police agencies who said, in effect, to hell with the micromanaging b.s. from Children’s Rights: I’m going to be laser-focused on safely keeping families together.  That shrank these systems to the point that they could make other improvements. 

All four jurisdictions now tear apart families at rates well below the national average, even when rates of family poverty are factored in. (Tennessee, on the other hand, takes children at a rate 20% above the national average.)  So imagine how much progress could be made if CR started negotiating settlements that emphasized reducing needless foster care in the first place.

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

Another lousy McLawsuit won’t fix LA foster care – and might make it worse

The McLawsuits brought by the group that calls itself "children's rights"
always ignore the elephant in the room.

● These McLawsuits typically lead to consent decrees that drag on for years and sometimes worsen the conditions they were intended to correct.  

● That’s because they systematically ignore the elephant in the room; the problem at the root of all the others: the needless removal of children.  

● The latest McLawsuit reinforces ugly stereotypes about who loses children to foster care. 

● And when it comes to racism in the system, the McLawsuit reeks of tokenism. 

The group that calls itself Children’s Rights (CR) has filed another McLawsuit – one of those nearly identical suits it files all over the country that routinely ignore the need to stop taking so many children in the first place. 

This time the suit is against Los Angeles County’s family police/family regulation agency – terms the McLawsuit itself refuses even to use, except in a single footnote.  It concerns the horrendous treatment of foster youth aged 16 to 21. 

At the outset, there are some things I’m glad to stipulate, as the lawyers would say. 

● I have no doubt that everything in the McLawsuit about how horribly older foster youth are treated is true. 

● Litigation can be effective.  NCCPR board members brought two of the few lawsuits that have been relatively successful,  R.C. v. Hornsby in Alabama and Nicholson v. Scoppetta in New York.  Both those suits focused on curbing the needless removal of children – disproving CR’s repeated claim that this can’t be litigated. 

● CR and the other groups bringing this latest McLawsuit are not “in it for the legal fees.”  As is so often the case among those who get these issues wrong, they mean well. 

But in the rare cases when CR’s McLawsuits are followed by real improvement, it’s almost always in spite of the litigation, not because of it.  And over and over, the McLawsuits have left systems as bad – or worse – than they found them. 

That’s why Michigan’s foremost family defender, Vivek Sankaran, in effect told CR to please get the hell out of Michigan.  More details about CR’s ugly litigation track record are here.  

But the bottom line is simple: In family policing, wrongful removal drives everything else.  That's the elephant in the room.  But CR’s McLawsuits typically say little or nothing about curbing the needless removal of children or reunifying them after they are taken.  The remedies they seek often divert scarce resources from keeping families together. 

The L.A. suit risks doing just that. 

About that “array” 

The major solution called for in the lawsuit is “a minimally adequate array of safe and stable placements.”  The phrase appears at least 19 times in the McLawsuit complaint.  But Los Angeles County already has a “minimally adequate array of safe and stable placements.”   They’re just not using it correctly. 

Los Angeles tears apart families at the second highest rate among America’s largest cities.  If they stopped doing that, a whole array of empty foster homes would be available.  And if L.A. then provided Wraparound services those homes could handle “difficult” older youth. 

Yet there is not one word about the need to take fewer children.  And, in a county where foster homes are filled with children originally taken because their family poverty was confused with neglect, CR couldn’t be bothered to find even one named plaintiff taken under such circumstances. 

On the contrary, the McLawsuit reinforces ugly stereotypes about the kinds of families whose children are taken, by offering no counterpoint to examples such as the youth who 

was cycled by DCFS between various family member placements. During this period, she experienced abuse and neglect from her caregivers, including periods of homelessness. 

CR even implies that such cases are the norm: 

Rosie S.’s childhood had the hallmarks of trauma and instability that DCFS is accustomed to seeing in children entering foster care, including early childhood abuse and neglect, family violence, frequent moves, and unstable placements. [Emphasis added] 

The point is not that such examples should be left out.  The point is that the far more common circumstances under which children come into DCFS “care” should have been included.  Who says poverty is confused with neglect?  Among others, Children’s Rights itself – in its excellent public policy work, which often is at odds with its own litigation.  

As for reunification, the McLawsuit does mention that – but only in one specific context: foster youth
who are themselves parents and wind up needlessly separated from their own children because of various rules and policies in their placements. 

CR rightly condemns this without addressing the question of all the young people in foster care whose own families are denied what they need to reunify. 

With curbing needless removal off the table (as usual in a CR McLawsuit), what’s left?  The McLawsuit doesn’t say, but typically that silence, combined with the false claim that LA doesn’t have “a minimally adequate array of safe and stable placements” means another foster parent recruiting campaign or maybe another pay raise for foster parents – who already often are taking in children because of those children’s own parents’ poverty.  And quite possibly more “group homes,” probably with some sort of euphemism in the name.  

CR’s policy arm produced an outstanding report condemning such “congregate care.”  Perhaps the litigation arm never read it – no wait, that can’t be it; CR’s litigation director is credited as a co-author. 

So when the inevitable settlement takes place it is quite possible that scarce funds that could be far better used to keep families together will be diverted into creating CR’s vision of “a minimally adequate array of safe and stable placements” – as happened in Michigan and Georgia. 

Tokenism about racism 

Children’s Rights is a group that once actually claimed, in a fundraising pitch, to be “driving a national conversation about the urgent need to end unjust government intervention in the lives of Black children and families.” 

That makes especially offensive how that whole issue is handled in this McLawsuit.  It isn’t.  It is simply mentioned in passing that “The overwhelming majority of foster youth in Los Angeles County come from low-income Black and Latino communities.”  And then, much later: “[T]he harms of Defendants’ failures disproportionately fall on already marginalized youth—youth of color, queer youth, pregnant and parenting youth, and youth with disabilities—as these youth are vastly over-represented in the Los Angeles County foster care population.” 

There is nothing about why this is the case, except for a hint, buried in a footnote. 

For clarity purposes, this brief uses the traditional terms “child welfare system” and “foster care system” to refer to the system of policies and supportive services meant to ensure the safety, wellbeing, and permanency of children, youth, and families. We recognize that the term “family

regulation system” more aptly describes this set of government structures, which far too often unjustly regulates marginalized families. 

But the Los Angeles McLawsuit doesn’t address how to stop “this set of government structures” from unjustly regulating marginalized families. 

The McLawsuits never do.

The Detroit News does “the fatality series” right

And Michigan’s leading family advocate blasts a Children’s Rights McLawsuit consent decree for making things “much worse.” 

How many times have you read what journalists covering child welfare call “the fatality series”? A now-defunct publication that purported to advise journalists on how to cover child welfare actually said: “Do the fatality series” – with what seemed like the implication that it should be done the usual way: by scapegoating efforts to keep families together and setting off a foster-care panic. That’s the easy way to cheap glory; the way chosen by the Miami Herald, the Los Angeles Times and many others. 

On June 8 and 9, the Detroit News did “the fatality series.” But they did it the hard way: In parts one and two they presented horror stories, but focused on the extent to which a key reason for the horrors is  taking away too many children in the first place, and how that overloads the system, making the horror stories more likely. 

Then, in parts three and four of the series, the News illustrates how the horrors go in all directions – with stories of needless removal of children from their mothers. (As you read them, recall that Michigan is the state where judges admit they routinely lie when they certify that the state complied with federal law and made “reasonable efforts” to keep families together before taking their children.) The stories also look at what Michigan says it’s doing to change – and contrasts it with what real change would look like. 

I can find no “grand unifying link” but all the stories can be found on on this page. (The stories are behind a paywall, but the News has a great deal on subscriptions right now.) 

The failure of the McLawsuit 

We appreciate the inclusion of NCCPR’s perspective, of course, but even more significant: The series allowed Michigan’s foremost family advocate, Prof. Vivek Sankaran, of the University of Michigan School of Law, to blast the longstanding consent decree won as a result of one of those awful McLawsuits brought by the group that calls itself “Children’s Rights.” From the story: 

The consent decree wastes agency resources and diminishes creativity because the state is worried about violating the consent decree, Sankaran said. 

The UM professor has been practicing law in Michigan since 2005, a year before the Children's Rights lawsuit was filed, and said he has seen a lack of improvements from the consent decree. 

"The consent decree stifles innovation; it squanders funds," Sankaran said. "I can tell you on the ground with the families and the kids I represent, nothing has gotten better because of the consent decree. … (The consent decree has), if anything, made the situation much worse because it's funneling money from front-end stuff to really fund our foster care system." 

That’s only part of the harm this consent decree and its underlying lawsuit have done.  The lawsuit called for strengthening enforcement of the so-called Adoption and Safe FamiliesAct.  The settlement demanded an odious practice called  “concurrent planning.” And the whole thing made it harder to place children in the least harmful form of foster care – kinship foster care.  You can read about it in our publication The Children Wronged by “Children’s Rights.” 

Though Michigan may be CR’s worst McLawsuit, others have done similar significant harm. That harm is all the more glaring now, because in recent years, Children’s Rights has taken some excellent public policy positions, such as calling for repeal of ASFA – the very law the Michigan Lawsuit (and by the way, their Texas lawsuit as well) said needed tougher enforcement!  But over and over the McLawsuits undermine the policy positions. 

It’s about time the group’s leader, Sandy Santana, was held accountable for the contradiction.