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