Foster care in Tennessee: When the leaders of the “child welfare” agency forgot their disguises

The Tennessee family police agency has a plan for what to do
with foster children who get out of line.

Decades ago, the father of family defense and family advocacy (and also the President of NCCPR), Prof. Martin Guggenheim, cut to the heart of the failure of family policing when he said: “There’s a lot of hate disguised as love in this system.” 

I thought of that when I watched two top “child welfare” officials in Tennessee forget their disguises. I’m not even talking about contempt for parents; they forgot to disguise what they really think of the children – once they get older and are no longer cute little “kiddos.” 

It happened at a legislative hearing in Tennessee concerning a bill supported by the state family police agency, the Department of Children’s Services. The bill would essentially allow DCS to throw foster youth into jail whenever the agency felt they’d gotten out of line - if even threatened to get out of line. 

Oh, wait. I’m sure DCS would want you to know these are not “jails” – rather, they are what news accounts call “jail-like facilities” - detention centers where, under current law, you are not allowed to place a child unless that child is convicted of a crime. But that’s certainly not a jail! 

Tennessee already allows foster youth who committed no crime to be handcuffed. As WTVF-TV in Nashville reports, the cuffs were used on a 12-year-old believed to be autistic, who refused to go to bed. 

But that’s not enough for DCS Legislative Director Jim Layman and DCS Commissioner Margie Quin, who testified in favor of the throw-foster-kids-in-jail bill. 

The leader of the Tennessee "child welfare" agency is demanding
accountability -- from the children. (Still frame from WTVF)

The story was first reported by WPLN Public Radio, then WTVF. They cover much the same ground,  but the video story has one advantage: Even in short soundbites, you can see and practically feel what those DCS officials really think of the children they are supposed to protect.  Watch as Quin says foster youth need to be effectively jailed to be held accountable for “violent” behavior because "that lack of accountability gives rise to additional violent behavior." 

It’s even more striking when the comments of those who would be the victimizers if this bill becomes law are compared to the love and understanding shown by one of those who could have been a victim, former foster youth Ella Bat-Ami.  You can see it all here.

And you can hear WPLN's story here:

 Of course, when foster youth commit violent acts, they already can be criminally charged and placed in “jail-like facilities.” So who does Quin really have in mind? 

Ella Bat-Ami knows what the rhetoric about violent behavior is really all about. Here’s an excerpt from WPLN’s story: 

“We don’t get to make mistakes,” Bat-Ami said. “We don’t get to have temper tantrums. We don’t get to have bad days. We’re not allowed to be children.” … She said that kids like her are living on a knife’s edge — getting into trouble could cost them their home, their foster family, and under a new proposal, their freedom. 

“Foster children are entitled to a childhood in the same way other children are entitled to a childhood,” she said. “It should not be a childhood with the sword of prison dangling over their heads.” 

Don’t believe the usual excuses 

What you heard and saw in these stories is young people like Ms. Bat-Ami described as so incredibly difficult that somehow they’d have to be jailed – and, says Quin, held accountable. Remember that when you hear officials all over the country say that it’s the rest of us who don’t understand when they tell us that the children supposedly are just sooooo much more difficult now, with oh sooooo complex behavioral needs that they simply can’t be placed in a home setting. 

It’s not true of young people like Ms. Bat-Ami. But it’s also not true when it comes to children who really do have serious behavioral problems. Because the research is overwhelming that institutionalization of any kind, let alone a jail, doesn’t work and often does enormous harm. That’s true even when institutions aren’t rife with abuse. But often, of course, abuse is rampant, as with institutions in, among other places, Arizona, Kentucky, Indiana, Utah, Iowa, Oklahoma, Rhode Island,  Washington State, Arkansas, New York, Connecticut, Ohio,  Idaho – and Tennessee. 

In contrast, what has been proven to work is bringing Wraparound programs right into a family home or, when a child really must be removed, into a foster home.  You won’t find many young people more “difficult” than the one the late Karl Dennis, the father of Wraparound, talks about in this video: 

And no, the problem isn’t a “shortage” of foster homes either. Tennessee tears apart families at a rate more than 80% above the national average, even when rates of child poverty are factored in. It's an ugly track record that goes back decades.  Tennessee also already uses so-called "congregate care" - group homes and institutions - at a rate well over double the national average, while using the least harmful form of foster care, kinship foster care, at a rate less than one-third the national average. 

Stop taking away children when parents are guilty of nothing more than, say, driving while Black, as happened in a notorious Tennessee case, spend the money you’re spending on institutionalizing kids on Wraparound services instead, and there will be plenty of good, safe family placements for the children who need them. 

But of course that would require an agency led by people with guts, vision and imagination – or at least an agency led by people who are a bit less hostile toward the kids they’re supposed to be protecting. 

Two footnotes 

1. Tennessee is among the first states to sign on to a new federal child welfare initiative. But I wonder if Gov. Bill Lee and Commissioner Margie Quin need to reread the document. The initiative is called a home for every child, not a cell for every child. 

2. On the matter of accountability. Commissioner Quin: 

● You run a system that tears apart families at a rate more than 80% above the national average.

● You run a system that allows an autistic 12-year-old to be handcuffed for refusing to go to bed.

● You run a system willing to tear apart a family for driving while Black.

● You oversee facilities rife with abuse. 

So by all means, Commissioner Quin. Tell us again why it’s the children who need to be held accountable.

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.

NCCPR in Tennessee Lookout: The best way to reduce child abuse fatalities is to reduce poverty

The only acceptable goal for child abuse fatalities is zero.  But how do we come closest to achieving that goal? 

Some have suggested that because child abuse deaths may have increased by 30% in 2023, Tennessee is doing too much to keep families together so we should tear apart even more families.  That would only make everything worse. 

For starters, there is no evidence for the claim that Tennessee is bending over backwards to keep families together. On the contrary, even when rates of child poverty are factored in, Tennessee takes children from their families at a rate nearly 50% above the national average. ...

Read the full commentary in Tennessee Lookout

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.

They can’t fix foster care – but they sure have mastered doublethink

           One of the most, uh, remarkable things about Marcia Lowry and her colleagues at the group that so arrogantly calls itself “Children’s Rights” (CR) is their mastery of doublethink – the term George Orwell invented to describe “the power to hold two completely contradictory beliefs in one's mind simultaneously, and accept both of them.”

            CR’s skill at doublethink is now on display in a series of reports and press releases about Oklahoma, where they’ve brought one of their class-action McLawsuits.

            In a previous post to this Blog, I noted that CR had issued a scathing report on the widespread abuse of children in Oklahoma foster care.  The problem, I said, was that CR isn’t lifting a finger to actually keep Oklahoma children out of foster care.

            Turns out I underestimated CR’s capacity for doublethink.  Now they’ve put out another press release about still another report.  Among the complaints this time: Oklahoma supposedly has gone too much to reduce the number of children in the very system CR itself says is a grave danger to those children.

            The report is written by Viola Miller, an odd choice given her mediocre record running child welfare systems in Kentucky and Tennessee.  Her report appears to be based in no small measure on reading other reports commissioned by CR.

            Miller agrees with what those other experts said about Oklahoma foster care.  She concludes that children are being harmed at an “alarmingly high rate” and until DHS cleans up its act, “the children in its care will continue to live in danger.”

            Then, in the very next paragraph, Miller launches into an attack on DHS for its success in getting more children out of this abysmal system.  Miller condemns DHS for using “differential response” an approach that now is used in many other states.  Every independent evaluation done of differential response shows it does not compromise safety; some have shown that child safety improves.

            And what evidence does Miller have that differential response is unsafe in Oklahoma?  The fact that it’s working.  Miller complains that the number of children in Oklahoma foster care is dropping too quickly.

            But that ignores one key fact: Oklahoma started out with, proportionately, vastly more children in foster care on any given day than the national average, and a vastly higher number of children taken away over the course of a year.  Even with the reductions in recent years – the very reductions Miller says have come too quickly – Oklahoma still tears apart families at a rate 40 percent above the national average and the number of children in foster care on any given day remains 50 percent above the national average.

            That means Oklahoma simply had vastly more cases that could suitably be diverted to differential response, and a sharp decline in the foster care population makes sense.

            Miller’s other “evidence” of a problem is that DHS offers voluntary safety plans to families who are assessed using differential response.  But that’s exactly what DHS is supposed to do.  That’s the whole point of differential response – in cases where the risk is believed to be low, you go out and offer voluntary help, not a coercive investigation.  What Miller appears to be arguing for is perverting differential response into child abuse investigations by another name.

ERRORS IN ALL DIRECTIONS

            There is, in fact, a case to be made for the possibility that DHS is not doing differential response as well as it should – but not based on the reasons Miller suggests.

People often point to horror stories about children dying in their own homes when they are “known to the system” as supposedly proving that the only error made by child welfare agencies is to leave the children in dangerous homes.  I usually reply by saying, among other things, that child welfare systems are arbitrary, capricious and cruel; they err in all directions.  Indeed, it makes no sense to think the errors go only way.

            But that also means a system that has screwed up foster care as royally as Oklahoma DHS has done is bound to be having problems getting alternatives right as well.  And, in fact, Miller found contradictions in various manuals for implementing differential response and responding to hotline calls.  That raises legitimate cause for concern.

            But nothing in Miller’s report suggests that the problems with differential response come anywhere near the scope and severity of the problems with foster care; nothing justifies any notion that there is equal danger.

            The credibility of Miller’s claims about differential response are further undermined because they are part of a pattern of CR seeking to undermine almost anything in almost any state that doesn’t involve subjecting every family to a full-scale child abuse investigation and traumatizing children with needless foster care.  CR also is going after differential response in Georgia, despite significant evidence that the Georgia program does not compromise safety.

            And back when Miller herself still was running the system in Tennessee, CR successfully bullied the Tennessee legislature into repealing a law that would have brought just a little bit of balance to the incentives judges face when making decisions about whether to remove children from their homes.

            A lot of this boils down to the whole bureaucratic mindset at CR.  Sure, foster care in Oklahoma is horrible for kids’ psyches and puts them in grave physical danger, but, they seem to believe, we’ll fix it – we’ll hire lots more workers and give them lots more bureaucratic forms and checklists and “training” and then everything will be fine.  And while we’re fixing foster care, we’ll just keep shoveling more kids into it and opposing efforts to divert kids to better options.

            Lowry likes to say that she doesn't know how to fix poverty, but she knows how to fix foster care. In fact, the results of her lawsuits suggest she doesn't know how to fix either one – and her efforts sometimes make the poverty worse.

            But even were it true, as Miller suggests, that the problems in Oklahoma foster care and Oklahoma’s efforts to avoid foster care are equivalent, that still raises a fundamental question: 

Miller writes that “children in Oklahoma are facing serious risk of harm both before and after they enter state custody.”

In that case, by tearing these children away from their families at a rate 40 percent above the national average, you accomplish exactly what?

Shedding light on foster care abuses

A new law review article provides more evidence that “sunshine is good for children”

In a 2009 post to this Blog, I wrote about how a tiny newspaper in a small town in Tennessee exposed an injustice:

In 2005, the Lebanon (Tenn.) Democrat, revealed that, at least twice, a local judge ordered Mexican mothers to learn English – or lose their children forever. (Access to the story may require free registration on the newspaper's website.) In one case the child still lived with the mother, in the other the child was in foster care. In both cases, the mothers spoke an indigenous language rather than Spanish.

NCCPR helped call the cases to the attention of national media. The Los Angeles Times and The New York Times did stories, the Southern Poverty Law Center heard about the case from news accounts and got involved. The mother at risk of losing her child had her case dismissed. In the other case, where the child already had been placed with affluent foster parents, custody was awarded to the birth father. The judge was disciplined by the Tennessee Court on the Judiciary.

The story of how the Lebanon Democrat got the story is almost as compelling.

Court hearings in Tennessee are at least nominally open to the press and the public.  Judges often throw reporters out, but at least they can sit there until it happens.  As a matter of principle, when the Lebanon Democrat was interested in a case, they’d send a reporter who would stay until the judge noticed and threw him out.

It was while waiting for the case that originally interested him that the reporter, the late Brooks Franklin, saw and heard one of the cases involving the Mexican mothers.

In most states, Franklin never would have gotten in the door.  In most states, court hearings in cases of alleged child abuse and neglect remain closed to press and public.

As with just about all the rotten things done by people in child welfare, closing court hearings is, of course, supposedly for the benefit of the children – in fact, it’s so child welfare agencies can cover up their mistakes and judges can get away with what that judge tried to do in Lebanon, Tennessee.

A fair number of states, however, do have open court hearings (the exact number depends on how one defines “open”).  And of all the courts to open them, not one has closed them again.  That’s because the Chicken Littles were wrong.  None of the harm predicted by opponents of open courts came to pass.  As the Pittsburgh Post-Gazette reported in this comprehensive series nearly a decade ago, all over the country one-time opponents have become converts to openness.

We have a summary of the series and other information on the case for open courts in NCCPR's Due Process Agenda.

The former chief judge of New York’s highest court, Judith Kaye, opened these hearings in New York in 1997.  Says Judge Kaye: “Sunshine is good for children.”

And now, Prof. Matthew Fraidin, Associate Professor of Law at the University of the District of Columbia David A. Clarke School of Law significantly advances the case for open court hearings in a new article in the current issue of the Maine Law Review.  It’s available by clicking here and then clicking on the download link at the top of the page.  And see also this story from the San Jose Mercury News on legislation that would  open these hearings in California.

It’s been said that “Justice must be seen to be done.”  That makes opening courts the first step toward doing justice for children.

UPDATED, MARCH 24: CR wins: More children will be shoveled into foster care in Tennessee

See update at the end of this post

It's no less disappointing for the fact that it's no surprise: The group that so arrogantly calls itself "Children's Rights" is crowing about having bullied the Tennessee Legislature into repealing a law that would have ever-so-slightly counterbalanced the enormous incentives for needless foster care. Details on the law, and CR's crusade to get rid of it, are in this previous post to this blog.

CR moved against this law even though the group's own Executive Director, Marcia Lowry, recently told the Philadelphia Daily News:

"I've been doing this work for a long time and represented thousands and thousands of foster children, both in class-action lawsuits and individually, and I have almost never seen a child, boy or girl, who has been in foster care for any length of time who has not been sexually abused in some way, whether it is child-on-child or not."

Now, thanks to Marcia and her colleagues, the odds of that happening to even more children in Tennessee have just gone up. And so have the odds of another case like this. That is how the group that so arrogantly calls itself Children's Rights defines "children's rights."

UPDATE: MARCH 24: CR’s double standards are showing again. Now they’re out with a press release using the horrors endured by two foster children as leverage in their lawsuit in Oklahoma. Two days ago, they gloated about using the settlement they won in Tennessee as leverage to win repeal of a law that would reduce the odds of children enduring such horrors in that state.

The Tennessee foster care suit: It’s 10pm. Do you know who your plaintiffs are?

Andrew, Kenneth, Nancy, Donna, and Kiera have several things in common.

All of them are very young. Andrew is 23 months old, Kenneth is two years old, Nancy is 4, Donna is 5 and Kiera is 6.

All of them were torn from their families "on or about November 6, 2009" based solely on the word of a caseworker who told a judge they were in danger. None of their parents had a chance to defend themselves or fight for their children first. In all cases, the allegation against the parents is "neglect."

All of them are from Anderson County, Tennessee, a county with a total child population of only about 16,000.

And, though, of course, they don't know it, all of them are suing the State of Tennessee.

Andrew, Kenneth, Nancy, Donna, and Kiera are the "supplemental named plaintiffs" in the lawsuit brought by the group that so arrogantly calls itself "Children's Rights" as it attempts to block a state law that ever-so-slightly counterbalances the enormous incentives to needlessly tear apart families. (The law is discussed in detail in previous posts to this Blog.)

There is nothing unusual about having children as "named plaintiffs." Depending on what you want to change it can be difficult to sue a child welfare system without them (though in the many other such suits I've read, at least some of the young people were old enough to understand what was going on.) And in this particular case, the first time CR tried to sue over this law, using the children it already had as plaintiffs in a longstanding settlement against the Tennessee system, the judge effectively said they couldn't use the same plaintiffs this time; they'd have to find new ones.

Of course the children didn't make the decision to sue the State of Tennessee themselves. That was done by someone deemed capable of representing their "best interests" – known as their "next friend." For four of the five children in this suit their "next friend" is their guardian ad litem, a lawyer named to argue for whatever the lawyer thinks is in their "best interests," for the fifth, the decision was made by the child's CASA (which figures).

But how could they possibly know that joining this particular suit was in the children's best interests? And how could CR?

Normally, the stories of named plaintiffs are carefully researched. Then, at least, the lawyers can be confident in their own minds that the relief they seek will help these particular children. And, of course, the stories of the named plaintiffs usually are a key part of persuading the judge. Lawyers look for the most horrible examples of whatever injustice it is they are suing about. So if the issue is, say, abuse in foster care, the named plaintiffs will have endured prolonged, horrifying abuse, outlined in detail when the lawyers file their complaint. In Oklahoma, for example, CR just released a 163-page report on the horrors that befell the named plaintiffs in their class-action suit in that state.

But in the Tennessee case, according to CRs Complaint, the only thing we know is that these children were taken from their homes based on the word of a caseworker, and that decision was promptly rubber-stamped by a judge whose record indicates a fanaticism about child removal. (Remember, Anderson County is the one where children are taken from their parents at a rate four to five times the state average, which would make it a contender for Child Removal Capital of America.) And there certainly wasn't much time for investigating the cases or getting to know the children. Having been taken away "on or about November 6, 2009" they were already named plaintiffs by November 9, when the Complaint was filed.

So now, with no indication that CR's lawyers have ever met their new "clients" and with no indication if they even know whether these children ever should have been removed at all, CR is using these children to increase the odds that their time in foster care will be prolonged.

CR would argue that they're just trying to free the judge from any extraneous considerations, like money. But CR is remarkably inconsistent about that. Children taken from their homes routinely are placed with private agencies that are paid for every day they hold those children in foster care. Yet I know of no instance in which CR ever has sued to stop those kinds of financial incentives. So the real effect if CR wins, using these children as their named plaintiffs, would be to make sure that any and all "external" incentives, personal, political and financial, push judges in only one direction – taking away the children and stashing them in foster care for a long, long time.

It's possible, of course, that foster care might be the best thing that's ever happened to Andrew, Kenneth, Nancy, Donna, and Kiera. Maybe they really were in imminent danger and there was no other alternative but to remove them without so much as giving their parents a hearing; maybe their removal and continued placement in foster care will save their lives. But the odds are very much against that. Research tells us that If, indeed, foster care is prolonged, chances are only one of these five children will do well as a young adult. The odds are at least one, probably two of them will be abused in foster care itself. The odds that they will get in trouble with the law and be unable to hold a job and the odds that Nancy, Donna, and Kiera will become pregnant as teenagers are greater than had they been left in their own homes.

So at a minimum, didn't the lawyers at CR have an obligation to find out all about Andrew, Kenneth, Nancy, Donna, and Kiera before using them to seek a change in state law that would increase the odds that they will stay in foster care? Didn't they have an obligation to find out if that change would be best for these specific children before suing in their names?

If, in fact, CR wins its lawsuit and if these children wind up better off in foster care, they should know that CR's lawyers helped keep them there so they can thank them. But if CR wins and foster care turns out to be a disaster, as it so often does, then Andrew, Kenneth, Nancy, Donna, and Kiera should know that among those who share responsibility are some lawyers from New York City who probably never knew them and probably knew little about them when they turned them into "named plaintiffs."

CR’s new push for more foster care in Tennessee

The group that so arrogantly calls itself "Children's Rights" is back in federal court in Tennessee. Once again, CR is trying to ensure that nothing gives the judge in Anderson County, whose fanaticism about child removal may be unexceeded anywhere in America, even a moment's pause about tearing apart family after family.

    As is discussed previously on this Blog, CR is challenging a law that says if counties tear apart families at more than triple the state average they are free to keep right on doing so – but they have to pick up the tab for the foster care. The only county actually affected is Anderson, which removes children at a rate either four times or five times the state average, depending on which source you believe. Either way, that might make Anderson County a candidate, along with a few others, for Child Removal Capital of America.

    In theory, CR is simply arguing that judges must continue to make their decisions in their current pristine, pure state, uncontaminated by even a passing thought about money or anything else besides "the merits." If anyone needs still another reason to open these hearings to press and public, the fact that CR is trying to pass of this Disney version as reality is a very good one.

    If that really were how juvenile courts operate, there would be no foster-care panics, no surges in removals after a high-profile case made headlines. Judges would simply admonish caseworkers not to be influenced by the fear of landing on the front page, refuse to rubber-stamp all those additional removals and that would be that. If decisions were made purely "on the merits," there would be no enormous variation in rates of removal, not just among counties but among states, to the point where children in one state are torn apart at rates five times higher than another. And were decisions made only "on the merits," it would not be possible to track the rise and fall of the foster care population throughout the 20^th Century, as Prof. Leroy Pelton does in his seminal book For Reasons of Poverty, (Praeger, 1989) to one factor above all others: changes in federal financial incentives.

    Incentive after incentive after incentive, personal, political – and financial – push child welfare agencies to take-the-child-and-run. These same incentives push courts to rubber-stamp those decisions and, sometimes, even demand removal when a child welfare agency wants, say, in-home supervision.

The way to counter these incentives is not to pretend they don't exist, but to push back, with incentives to curb removals, so the incentives cancel each other out and decisions really can be made on the merits. (Of course that also would require that impoverished birth families have high-quality legal counsel, so they can balance the presentations by child welfare agencies, but one never hears about that from CR.)

    Tennessee's new law provides what can best be called one tiny counter-incentive. And that is the one and only incentive CR chooses to fight – in Tennessee or anywhere else.

    All over America, private agencies are paid for every day they hold a child in foster care. If they do what they are supposed to do – return the child safely home or, when that truly is not possible, get the child adopted, the money stops. The pernicious impact of these incentives was documented at least as far back as 1975, in a brilliant series by the New York Daily News.

    But I know of no case in which CR has gone to court to try to change these incentives. On the contrary, when New York City first tried to change them, in 1995, CR went to court and successfully stopped the change. (Now, the City is making some tentative steps toward changing those incentives again.) In perhaps the ultimate irony, CR just today released a study reportedly whining about how children languish in foster care too long in New York City. Perhaps had CR targeted the financial incentives to hold them there, back when the Daily News first exposed them, things might be different now. (CR didn't exist as a separate entity back then, but its founder, Marcia Lowry, was doing much the same work, affiliated at the time with the New York Civil Liberties Union.)

    So clearly CR isn't against all financial incentives – those that prolong foster care are just fine.

WHERE THE "SMOKING GUNS" REALLY ARE POINTED

    CR's "supplemental complaint" to the court is filled with quotes from various state officials and state documents which CR seems to consider damning. In fact, they show precisely why the Tennessee law is needed.

CR quotes the Commissioner of the Tennessee Department of Children's Services, Voila Miller, on a provision of the original bill that would have let the state bill counties if they took children at more than double the state average, instead of triple, as in the final law. Had that passed, and if counties did not change their ways, Miller estimated it might have reimbursed the state a total of $7.5 million. Said Miller:

The way we track commitment rates in Tennessee and most states is the number of children per thousand that come into the custody of the state. In Tennessee we have an average and most states, I mean, most counties rock right around that average of somewhere between three and four kids per thousand, we have a few counties in this state that commit at 16, 20 per thousand. That is significant overcommitment of children. Children are coming into state custody who should not. Now, we have been addressing this problem aggressively and we've made a lot of progress, and as I said, I want to work with those counties in making sure those kids can stay safely in their home. I don't ever want to collect a nickel of that 7.5 million dollars, I want to reduce that commitment level. [Emphasis added.]

    A Tennessee legislator explained that the provision was simply common sense. We're all more careful about spending our own money than someone else's:

[T]he policy consideration for this particular matter is to somewhat have our local governments be a little more judicious as to who they commit to state custody . . . . It makes people more responsible for their decisions, and when you're more responsible for your decisions you're going to be more careful with your decisions.

    Then CR quotes a memo from The Tennessee County Services Association, which it describes as "a nonpartisan, nonprofit public interest group." The memo said, in part:

The state average is 3.6 per 1,000 for children committed in the Dependent & Neglect and Unruly category. Anderson County's commitment rate is 17 per 1,000, some four times more than the state average. … The public policy implication is that in some cases juvenile judges are over-using their commitment authority and, thus, not offering alternatives to the family nor the child. [Emphasis added].

    Exactly.

    Then CR quotes the child welfare agency's budget director, who says:

    Actually, this one reduction actually is the only one in our Department that actually is good for kids. Now, you as a county may say, well, no, this is affecting your county budget. Our goal with this is that we as a Department don't collect a dime from the county. And that would be what was in the best interest of kids. . . . It's about . . . leaving [kids] with their families. (Emphasis added. But the ellipses this time and in the quote below are from CR – one can only wonder what CR chose to leave out.)

    And finally, what CR seems to think is the ultimate "smoking gun": An e-mail from the child welfare agency's legislative director in which he says:

    Anderson county [sic] clearly understands that they have a huge problem on their hands – their judge … We have the support of the county commission to work with the judge to bring down unneeded commitments.

    As for the law itself, in its final version it requires the child welfare agency to initiate a "collaborative planning process" with counties when entries are double the state average. Counties must pay only when they exceed triple that average.

    So what CR seems to view as a veritable arsenal of "smoking guns" points only in the direction of an agency that finally decided to use financial incentives in a way that can bring significant benefits to children – by saving them from the enormous harm of needless foster care.

    As to how CR got back into court on this issue – that, too, is instructive. And I'll try to get to it in a future post.

Victory for Tennessee children

A federal judge has refused to block a law that ever so slightly balances the scales of justice in that state's juvenile courts.

As is discussed in previous posts to this blog, the law imposes a small counter-incentive to begin to balance the huge incentives toward needless removal of children in that state. In so doing, the judge has supported children's rights to be free from unreasonable search and seizure and children's rights to be free from the enormous psychic trauma – and risk of physical and sexual abuse – that comes with needlessly being thrown into foster care. But these are rights that the group that so arrogantly calls itself Children's Rights not only won't protect, but sought to undermine in Tennessee. It was that group which sought to block the new law – and they're threatening to keep trying to stop it.

Horrors! A judge is thinking twice about foster care!

In a previous post to this Blog, I wrote about a Tennessee law requiring that, when a juvenile court judge in a given county is so fanatical about tearing apart families that entries into foster care exceed triple the state average, that county has to pick up the tab for the additional placements. This small brake on removal-obsessed judges would slightly counterbalance all the other incentives, personal, political, and financial that push for needless removal of children.

Of course, the group that so arrogantly calls itself "Children's Rights" is trying to block the law.

And no wonder. Because now the "horrors" caused by this law have been revealed for all to see.

They are outlined in a deposition played at a court hearing yesterday. The deposition is from April Meldrum, the juvenile court judge in Anderson County, the one and only county that actually is affected by this law. According to the Associated Press, Meldrum says she and her staff now are working much harder to find ways to keep children out of foster care – to the point that, in one case, a child fell asleep in the courtroom at 11pm, while they kept looking.

The story doesn't say what ultimately happened, but, since you can be sure the judge would have mentioned it if these efforts failed and the child wound up in foster care anyway, odds are the result was that this child found something better – perhaps placement with a relative. Chances are the child was spared from the one-in-three risk of abuse in foster care with strangers, and spared from the inherent emotional trauma of what should properly be called "stranger care." In short, this child probably was spared from fates far worse than a long night in a courtroom.

The judge also lamented the fact that she is now deterred from stashing children away in foster care "for a few days" while the state tries to find a family friend or a relative.

But that's exactly as it should be. For a young enough child, even a few days torn from everyone loving and familiar and parked with strangers can feel like a kidnapping. The psychic damage can be significant. That's why good systems use a model called "first placement, best placement" which means exactly what it says.

But here's the real horror: The AP story revealed that the actual rate of child removal in Anderson County is five times the state average. That would make the rate of child removal in Anderson County not just the worst in Tennessee, but among the very worst in the nation, by far. It would make Anderson County one of about a half dozen candidates for Child Removal Capital of America.

If the new law is allowed to stand, that finally might change. Judge Meldrum and county officials would have to start building their own infrastructure of prevention and family preservation to supplement the state's efforts. She'd have to stop engaging in knee-jerk child removal. Maybe she'd even sign up for a training course in child development and finally learn a little about what she's done to all those children she's parked in foster care "for a few days."

Ultimately, she'd probably discover how wrong she'd been about so many previous decisions – and maybe even thank the legislature for giving her just the nudge she needed to reconsider her approach, and learn how to truly decide cases on their merits.

One can certainly see how all that would horrify a group like CR.