Children's Advocates Charge Tennessee Governor and Child Welfare System with...

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Call for court-appointed administrator to develop and implement plan to ensure compliance with Settlement Agreement in Brian A. lawsuit

( Nashville , November 20, 2003 ) Children's Rights, a national advocacy organization for children, and their Tennessee co-counsel in the Brian A. class action lawsuit, today filed a motion in federal court charging Tennessee Governor Phil Bredesen and the Commissioner of the Department of Children's Services (DCS) with contempt of court. The advocate attorneys, who represent the approximately 8,000 foster children currently in state custody, charge that the Governor and DCS have failed to comply with the terms of a Settlement Agreement approved by the court in July 2001. Children's Rights and co-counsel are calling for the court to appoint a special administrator with the authority to develop a plan and take steps to ensure that the Department comes into compliance. They have also asked for a court hearing at which they will present evidence.

"Evidence of the Defendants' contempt is clear and convincing," states the contempt motion filed in U.S. District Court for the Middle District of Tennessee. The motion cites the recent Federal Monitor's report showing widespread non-compliance. That report revealed that the agency is refusing to address long-standing violations of the rights of children and is failing to provide required services to children in its custody more than two years after the settlement's approval. The advocate attorneys assert that the state has not even developed a plan to implement the Consent Decree.

The contempt motion was filed by Children's Rights, joined by co-counsel David L. Raybin and Jacqueline B. Dixon of Hollins, Wagster & Yarbrough PC in Nashville, and of-counsel Richard B. Fields in Memphis, John W. Pierotti and Robert Louis Hutton of Glankler Brown PLLC in Memphis, and Wade V. Davies of Ritchie Fels & Dillard in Knoxville.

"Children in Tennessee deserve more than empty promises," said Marcia Robinson Lowry, Executive Director of Children's Rights. "We've waited over two years for the governor and DCS to make good on the terms of the agreement. And they haven't even figured out what needs to be done. To protect the children we represent, we have no choice but to ask the judge to intervene to force compliance and give these children the benefits they need."

Sheila Agniel, appointed as Monitor by the federal court in 2001 as a result of the settlement of Brian A. , evaluated DCS's efforts over the past 27 months to implement the many reforms called for by the settlement. The Monitor found the state in full compliance with only 24 of the 136 different provisions for which she was able to issue a finding. The Monitor issued findings of outright "non-compliance" on 84 separate requirements.

Among other requests, the motion for contempt filed today seeks an order from the court:

*Scheduling a hearing to present evidence before the court;

*Holding the Governor and the Commissioner of DCS in contempt of court for failure to comply with the terms of the court-ordered settlement;
*Appointing a special administrator to develop a plan setting forth the concrete steps DCS will be required to take to come into prompt compliance with the Settlement Agreement and to oversee the implementation of that plan;
*Stopping the clock on the time-frames set out in the Settlement Agreement pending the development and implementation of an appropriate plan.

"A child's life doesn't stand still while the state fiddles," said co-counsel David Raybin. "These are vulnerable kids who need help now."

The breadth of the state's non-compliance documented in the Monitor's report was striking," said Doug Gray, a staff attorney at Children's Rights. "In some cases, there was not only no improvement by DCS but even backsliding on important measures that keep children safe, such as requirements on how often a caseworker needs to visit a child in a foster home."

Children's Rights works throughout the United States in partnership with national and local experts, advocates and government officials to document the needs of children in the care of child welfare systems. Children's Rights helps develop realistic solutions and, where necessary, uses the power of litigation to ensure that reform takes place.
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