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.

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.

Texas tragedy is foster-care failure in microcosm

KABB-TV in San Antonio reported this week on the tragic death of 16-year-old Mia Morales who died in a car crash after running away from a makeshift foster care placement.  It’s remarkable how many tragic failings of Texas foster care – and the failed attempt to fix it with a McLawsuit – are illustrated by this one case. 

● Mia’s mother says she gave up the girl and her other children for adoption nine years ago because she thought they would be safe.  The mother was being abused by the children’s father. 

What if, instead of simply accepting surrender of the children, authorities had removed the abuser from the home, and helped the mother with whatever she needed to raise the children on their own?  

● The adoption failed – the adoptive parents gave up on the children and sent them back to foster care. 

We don’t know how often this happens – family policing agencies never like to ask questions to which they don’t want to know the answers.  But the available data are alarming.  It’s clear that often the “forever family” is anything but.  This much we do know: The adoptions helped Texas collect bounties of anywhere from $4,000 to $10,000 paid by the federal government under the so-called Adoption and Safe Families Act.  When the adoptions failed, Texas didn’t have to return any of the money.  In addition to all its other harms, ASFA creates an incentive for quick-and-dirty slipshod placements. 

● One reason the mother might have thought surrendering her children to foster care was the only option: She’d been in foster care herself.     

Yet, even after generations of failure, we still delude ourselves into thinking foster care is fixable. 

● The story ends with the obligatory quote from a lawyer involved in the McLawsuit against the Texas system brought by the group that calls itself “Children’s Rights.”  

But the McLawsuit, like so many other nearly identical suits brought by Children’s Rights, does nothing to fix these problems and may even make things worse. Children are in makeshift placements because too many are taken needlessly from their homes.  The McLawsuit diverts funds from what does work – providing the help families need so their children aren’t taken in the first place.  And the lawsuit complaint even calls for stricter enforcement of ASFA. 

The failure of the Children’s Rights McLawsuit approach is best summed up when the local lawyer working with them tells KABB “What these children need are trained caregivers.”  No. What these children need are exactly what Mia Morales needed – their own families.

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.

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.