Innovative Settlement of Class-action Lawsuit to Launch Court-Ordered Full-Scale Reform of Tennessee

PRESS RELEASE

State agrees to unprecedented role for team of outside experts and an independent monitor to guide and enforce comprehensive reform of Department of Children's Services

(Nashville, Tennessee, May 15) All parties in Brian A. v. Sundquist, the child welfare reform class-action lawsuit, agreed today to resolve a federal court lawsuit in an unprecedented approach to full-scale reform of Tennessee's troubled Department of Children's Services (DCS). For the first time in any court ordered settlement, a state child welfare agency will be measured not only by traditional requirements like caseload limitation and time periods in which planning must take place, but with qualitative outcomes for children, such as frequency of movement of children among placements while in care and the number of children who stay in foster care longer than is appropriate. The state will be assessed on the levels at which they achieve such desirable outcomes for children.

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For the first time in Tennessee, DCS will be required, by court order, to work closely with a team of five independent child welfare experts who will guide and assist in a comprehensive reform of the state-run child welfare system.

A series of concrete, measurable results to establish that reform are set forth in the Settlement Agreement that is being signed and will be presented for court approval to Judge Todd Campbell, U.S. District Court for the Middle District of Tennessee by counsel for plaintiff children, Children's Rights and law firms in Nashville, Memphis and Knoxville, and by the State Attorney General. Pursuant to federal court procedure, Judge Campbell will decide whether the agreement is a fair, reasonable, and adequate settlement of the lawsuit after a public hearing that is expected to take place in June.

The innovative agreement settles but does not end the class-action lawsuit, which sought reforms to benefit the approximately 9,000 children who are dependent on DCS for their care and protection. The lawsuit was filed in May, 2000 against Governor Donald Sundquist and George Hattaway, Commissioner of DCS, for failure to protect these children. Mediation was ordered by the court in December 2000 and since then intensive negotiations have been ongoing among the parties.

Under the agreement agreed to by the parties today, the district court will have continuing jurisdiction to ensure compliance, enforce all provisions of the settlement, and enter further orders or impose sanctions if necessary. An independent monitor will be put in place and have access to all DCS records and the power to collect information and to determine whether the state is making the reforms called for by the agreement. Children's counsel will also have access to all information compiled by the monitor to ensure enforcement. If defendants comply with all measures in the agreement, termination of the Settlement Agreement could be achieved in 2006.

"This is the most comprehensive and well-planned settlement for the benefit of children that I have ever seen," stated Marcia Robinson Lowry, executive director of Children's Rights, the national children's advocacy group representing plaintiffs in Brian A. "Taking into account lessons of non-compliance in other systems, this agreement provides concrete, measurable indicators of reform, careful monitoring, and expert assistance to ensure compliance and real change in the lives of foster children. This court ordered settlement also requires the necessary resources to make sure that children get what they need."

"The state is to be commended for settling this lawsuit and making a commitment to getting reform underway as soon as possible," said Ira Lustbader, lead attorney for Children's Rights on the case. "Tennessee's foster children have waited a long time to get to this point. Children living in unsafe conditions in foster homes and group facilities should not have to wait another day for help. DCS has made a commitment to address the needs of certain children named as plaintiffs and that same problem-solving ability must be applied throughout the system."

Children's Rights co-counsel in the class-action represent children in every area of Tennessee and include David L. Raybin and Jacqueline B. Dixon of Hollins, Wagster & Yarbrough PC in Nashville; 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.

David Raybin in Nashville hailed the settlement as critical in reforming the Tennessee child welfare system. "I got involved in this case because I realized how important it was for our state. I found that 10,000 little children have no voice and this lawsuit gave them an opportunity to be heard. The Tennessee lawyers who have worked on this case with me are all happy that the lives of these children now have the chance for a new beginning."

Major terms of the Settlement Agreement in Brian A. v. Sundquist include the following:

1. Technical Assistance Committee: A Technical Assistance Committee of five national experts in the child welfare field has been selected to assist defendants in the meaningful implementation of the requirements of the Settlement Agreement. The state will be required to implement the Technical Assistance Committee's recommendations in the following areas:

*DCS's protocol for assessing children in foster care;
*The development and implementation of a quality assurance unit;
*Policies and procedures on use of psycho-tropic medications for children;
*Policies and procedures on all forms and use of physical restraint and seclusion/isolation of children in foster care; and
*An evaluation of the defendants' statewide computerized information system.

2. Independent Monitor: Sheila Agneil, a respected child welfare expert from Kansas City, Missouri, has been named the independent and neutral Monitor to monitor compliance with the agreement. The state is required to provide the Monitor with all necessary information and the Monitor shall have authority to require reports on implementation of the provisions of the agreement, the status of children in foster care and compliance with the Settlement Agreement.

3. Quality Assurance: DCS must develop and implement a statewide quality assurance program, including a quality assurance unit. The quality assurance Director shall report directly to the Commissioner of DCS. Major responsibilities of the quality assurance unit include:

At a minimum, once every 12 months, a review of a statistically significant number of cases from each region of the state, to evaluate placements, services and treatment being provided to foster children and to measure appropriateness of decision-making concerning foster children.

4. Ensuring No Disparate Treatment of, or Impact on, African American Foster Children: An independent expert shall conduct a statewide evaluation to determine whether there are disparities concerning placements, services and treatment provided to African American foster care children or their families. The evaluation will result in the expert's report and recommendations, which shall be implemented by DCS.

5. Reporting Abuse And Neglect: The system for receiving, screening and investigating reports of child abuse and neglect of foster children shall be staffed with sufficient number of workers to ensure that all reports are investigated in the manner and within time frames provided by law.

6. Regional Services: Each region of the state shall have available a full range of community- based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.

7. Staff Qualifications, Training, Caseloads And Supervision: Specific criteria for hiring, training and promotion shall apply to all case managers and supervisors with direct responsibility for the cases of foster children, both at DCS and at any contract agencies. The Agreement requires specific maximum limits on the numbers of individual cases that may be assigned to a case manager and specific maximum limits on the number of workers supervised by supervisors.

8. Placement And Supervision Of Children: DCS shall immediately conduct a statewide needs assessment under supervision of an independent expert to determine the need for new and/or different placements and services and where they should be provided. The Agreement sets forth a number of standards for placement of foster children, including, among others:

*all children shall be placed within their own region or within a 75 mile radius of the home through which the child entered custody;
*children shall not remain in emergency or temporary facilities for more than 30 days and shall not be placed in more than one emergency or temporary placement within any 12 month period;
*the number of children in any particular foster home has been capped to ensure proper care for children.

9. Planning For Children: A planning process shall 1) initially will work intensively with child's parents and appropriate family members to allow child to remain safely at home, if appropriate; 2) in those instances in which removal from home is necessary, will work intensively with the child's parents and other appropriate family members in a collaborative process to return the child home quickly under appropriate circumstances consistent with reasonable professional standards; and 3) if return home is not appropriate or cannot be accomplished safely within a reasonable period of time, will assure the child an alternative, appropriate permanent placement as quickly as possible.

10. Freeing A Child For Adoption: The Settlement Agreement sets forth required time periods and elements of the process for freeing a child for adoption and seeking and securing an adoptive placement, as well as requirements for the use of specialized adoption efforts and the availability of post adoption placement services.

11. Adoptive And Foster Care Recruitment, Retention And Licensing: DCS shall establish and maintain a statewide, regional and local program of adoption and foster care recruitment. The Settlement Agreement sets forth required elements for these programs, including:

*A plan for foster parent and adoptive parent training;
*Minimum standards for foster parent and relative foster parent room and board rates consistent with federal standards on the cost of raising children;
*Availability of an adoption subsidy; and
Specialized rates for special needs children.

12. Supervision Of Contract Agencies: The Settlement Agreement requires that all contract agencies which provide placements or services to foster children shall only do so pursuant to annual performance based contracts issued by DCS. DCS shall only contract with agencies that meet the provisions of the Settlement Agreement and DCS shall expand the staff of the current licensing division to allow for increased monitoring and oversight of the contract agencies. Any reports of alleged abuse or neglect of children placed through contract agencies shall be reported to the DCS central office and the quality assurance unit and shall be incorporated into annual reviews of each agency.

13. Measures Of Performance: The Settlement Agreement establishes specific measures of performance, compliance on each of which (a particular percentage) will be measured by the Monitor, generally after each of three 18 months periods. Measures include, for example:

*Percentage of foster children reunified within twelve months of their latest date of removal from their parents;
*Percentage of foster children who have had 2 or fewer placements;
*Percentage of foster children in foster care for 2 years or less;
*Percentage of foster children with a goal of return to their parents who are visited by their parents at least once a month;
*Percentage of foster children who are placed together with their siblings;
*Percentage of foster children for whom parental rights have been terminated, for whom an adoptive home is identified and an adoption contract is signed within 12 months of the termination of parental rights;
*Percentage of foster children with a goal of permanent foster care; and
*Percentage of foster children placed within their region or within 75 miles of the home through which they entered custody.

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.