Class Action Lawsuit to Reform Tennessee's Child Welfare System Moves Forward on Two Fronts

PRESS RELEASE

Judge Dismisses State's Motion To Block Fact-Finding; Permits Questioning of Public Officials to Begin.

Advocacy Group Fights State's Attempt to Dismiss Lawsuit and State's Claim that Governor Sundquist and Commissioner Hattaway Are Not Legally Responsible For Children in Foster Care.

(Nashville, Tennessee, August 21) -- A judge's recent decision against the state and legal papers filed today by lawyers representing Tennessee's foster care children fighting the state's motion to dismiss a federal civil rights lawsuit, are keeping the class action Brian A. v. Sundquist, moving forward. Brian A. v. Sundquist seeks reform of the Tennessee Department of Children's Services (DCS) and charges that DCS is putting thousands of children under its care in danger and at risk of harm.

Decision by Judge

On August 17, Magistrate Judge Joe B. Brown, U.S. District Court for Middle District of Tennessee, rejected an attempt by defendants - Governor Don Sundquist and DCS Commissioner George Hattaway - to block fact-gathering in Brian A. v. Sundquist. Judge Brown stated that defendants had objected to any fact-gathering, believing it to be burdensome "on the grounds that high-level officials will still be necessary to answer the questions." Defendants based their argument on a Supreme Court decision in Harlow v. Fitzgerald, in which aides to President Nixon sought immunity from testifying in a civil damages action.

Judge Brown cited "The grave nature of the complaint regarding the welfare of some of our most vulnerable citizens," and decided that the "mere inconvenience of answering the plaintiff's questions on fundamental policies and procedures regarding the care, supervision and administration of these children hardly qualifies for the type of distractions Harlow contemplated."

Judge Brown's decision means lawyers representing children in foster care -- the national advocacy group Children's Rights and lawyers in Nashville, Memphis and Knoxville -- can proceed to take testimony from DCS workers and officials about four key areas:

*the structural organization of DCS;
*the computerized system used by DCS to trace the status, needs, provisions of services and outcomes for individual foster children in DCS custody;
*the process concerning placement of foster children in DCS custody; and
*the process for developing and implementing services plans and permanency plans for foster children in DCS custody.

Plaintiff's Answer to State's Motion to Dismiss
Lawyers representing the eight named children plaintiffs and all children in Tennessee's foster care system filed papers today in District Court opposing the state's motion to dismiss the entire case. The children's lawyers' argument against the state notes that "Tennessee's foster care system is in a state of chaos and emergency" and that "For too many children, a safe return to their family, adoption or other permanent placement is only a fantasy, not a reality. Instead, far too many Tennessee children are growing up in state custody."

The state had asked Judge Brown to dismiss every single legal claim in the case. Lawyers for the plaintiff children have responded that "Invoking a 'shotgun' approach, defendants have moved to dismiss every claim asserted by plaintiffs, in an attempt to deny any legal responsibility for the systemic failing which have caused - and continue to cause - plaintiffs to suffer significant physical, emotional and psychological harm."

The papers filed on behalf of the foster children today also state:

Defendants maintain that the governor of this state and the chief administrator of the state's child welfare agency cannot beheld legally responsible for the long-standing violations of these children's rights caused by a mismanaged and severely inadequate child welfare system. Defendants refer to plaintiffs' circumstances as "tragic."... They are correct. However, the tragedy at issue in this lawsuit is not about the circumstances that brought these children into state custody, as defendants suggest. The tragedy is defendants' failures to protect plaintiffs' rights and their lives -- a tragedy that would be further compounded by the Court's acceptance of defendants' ill-founded legal arguments.

About Brian A. v. Sundquist

Brian A. v. Sundquist was filed on May 10, 2000 on behalf of eight named plaintiffs-- children who have suffered serious physical and psychological harm while in the care of DCS--and on behalf of the approximately 9,000 foster care children who are currently dependent on DCS for their care and protection. Defendants in the class action are Governor Donald Sundquist and George Hattaway, Commissioner of DCS.

The lawsuit was filed by Children's Rights, a national advocacy group for children, along with co-counsel David L. Raybin and Jacqueline B. Dixon of Hollins, Wagster & Yarbrough PC in Nashville, and 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.

Brian A. v. Sundquist asserts that for at least ten years, the state has been well aware of its pervasive failure to serve the children who depend on DCS for their basic safety and most fundamental needs, and has failed to provide the leadership, support and resources necessary to protect and care for children.

The lawsuit requests that the court permanently stop defendants from subjecting the children in the plaintiff class to harm and from threatening their safety and well-being through practices that violate their rights. On behalf of these children, the court is being asked to order appropriate remedial relief to ensure that defendants comply with the law and provide children with legally mandated services.

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.