Judge Rules Core Constitutional Claims of Lawsuit Seeking Reform of New Jersey's Child Welfare Syste

PRESS RELEASE

Federal Judge Decides Court Should Consider Claims That Children's Constitutional Rights Are Being Violated and Their Lives In Danger

Judge Garrett E. Brown, Jr. of the U.S. District Court ruled today that the lawsuit Charlie and Nadine H. v. Whitman, which charges that the state's child welfare system is poorly managed, overburdened, underfunded and is severely harming the health and safety of New Jersey's children, should move forward. Judge Brown rejected arguments by the New Jersey Attorney General and the Division of Youth and Family Services (DYFS) to have the lawsuit dismissed in its entirety. While rejecting peripheral legal claims, Judge Brown held that as a matter of federal constitutional law children in DYFS custody have a right to be protected from harm and to vindicate that right in federal court.

Judge Brown's decision recognized that New Jersey has a "troubled child welfare system." The decision states: "There is no term other than tragic to summarize" the situation of plaintiff children as pled "in heart-wrenching detail" in their complaint, filed by their attorneys, Children's Rights, a children's advocacy organization, and Lowenstein Sandler, a New Jersey law firm. "For example, the Complaint alleges instances in which Plaintiffs were sexually, physically, and psychologically abused, and in at least one instance, nearly killed, while in DYFS custody."

"Judge Brown has given us the go ahead to fight for the rights of the children in New Jersey's child welfare system, and fight we will," stated Marcia Robinson Lowry, Executive Director of Children's Rights. "The court is the last refuge of hope for these children - their own governor and the very officials paid to protect them have failed to acknowledge the severity of their problems. We cannot, and will not, allow their rights to continue to be violated."

While the Court acknowledged the tragedy befalling abused and neglected children who have not been protected by DYFS, certain legal claims were dismissed for those children who have not been placed in foster care by DYFS but who nevertheless are reported to be in danger of abuse and neglect.

"There are many children whose rights we sought to vindicate by this lawsuit that DYFS is obligated to protect but has systematically failed to do so for a number of years," stated David L. Harris, a partner with Lowenstein Sandler who is leading the firm's pro bono work in the lawsuit. "We are saddened that although the judge has acknowledged the circumstances of these approximately 40,000 children who we believe are being harmed by DYFS's neglect, he held that we cannot pursue their legal rights. We sought to bring scrutiny to the condition of these children, but part of this decision will exclude that kind of review. We are delighted that the core constitutional claims of those children whose lives are administered by DYFS will be vindicated through this lawsuit."

One example of children excluded from the lawsuit are Ryan (8), Christopher (6) and Melissa (nine months), who have been left with their mother by DYFS and their case repeatedly closed even though the agency received numerous reports of abuse and neglect for the past five years. DYFS recently closed their case yet again despite multiple reports that Ryan has required psychiatric hospitalization because of his aggression and self-mutilation. Both boys are left to care for their baby sister, the children are not fed or washed, and their mother continues to be physically and emotionally abusive. There are over 40,000 of these children in New Jersey left with abusive or neglectful parents with open DYFS cases that remain unprotected by any system of accountability.

The court ruled that the plaintiffs' core claims that abused and neglected children are suffering further harm while in DYFS' care because of the agency's "poor management" and "gross over-burdening of the child welfare system" could be heard by the Court on the merits instead of being dismissed on legal technicalities. For example, Ricardo O. (13), who was placed in foster care in 1997 without any services despite serious mental health issues, attempted to cut off his penis with a dull knife as a result. DYFS, however, then left him in a facility for months where he was raped by older boys. He has since been sexually assaulted again in his most DYFS recent placement and states "I've got nothing to live for." At least as to these children, DYFS will be held accountable.

Background on the lawsuit

Charlie and Nadine H. v. Whitmanwas filed in August 1999 on behalf of 20 named plaintiff children living in eight different New Jersey counties. They all experienced serious physical and psychological harm while in the care of DYFS or while known to DYFS because of allegations of abuse and neglect. Defendants in the suit are Governor Christine Todd Whitman, Michele K. Guhl, Commissioner of the Department of Human Services, and Charles Venti, Director of the Division of Youth and Family Services of the State of New Jersey.

Children's Rights responded to requests from local advocates to investigate New Jersey's child welfare system over three years ago. When Governor Whitman appointed a Blue Ribbon Panel of child welfare professionals to examine DYFS, CRI suspended its review, awaiting the panel's findings and action by the state. The Panel's Final Report, issued in February 1998, concluded that DYFS had been damaged by years of cut-backs and neglect; identified problems at every point in the child welfare process; and, stated that the capacity of DYFS has been reduced to a "crisis mode of intervention." The Governor's strategic plan failed to address what the panel identified as the most fundamental and urgent problems facing DYFS.

With renewed calls from advocates, foster parents and caseworkers, Children's Rights met with more than 400 people involved in the day-to-day operations of the child welfare system, including state judges, state and private agency caseworkers, educators, foster parents, adoptive parents and children living in foster care. Each described specific examples of DYFS's systemic failures that pointed to the need for a lawsuit to force reform of DYFS practices. Those deficiencies, detailed in the lawsuit's complaint, include:

1.leaving children in homes where they are abused and neglected, and even killed;
removing children from homes where they could be safely maintained with proper services;
keeping children in foster care unnecessarily with little attempt to reunite them with families;
2.moving children from foster home to foster home without adequate services or support;
3.allowing children to languish for years in custody with little hope of an adoptive home.

Lowenstein Sandler consistently ranks at the top among New Jersey's largest law firms in the New Jersey Law Journal's annual pro bono survey. The firm has played a visible role in cases involving educational equity, civil rights, and political asylum, and has a deep commitment to children's issues.

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.