Media Advisory on Charlie and Nadine H. v Whitman

PRESS RELEASE

Judge to hear arguments in federal lawsuit seeking reform of New Jersey's child welfare system

WHAT:
Oral Arguments by attorneys for children to certify the federal lawsuit, Charlie and Nadine H. v. Whitman, as a class action.

WHO:
Hon. J. Garrett E. Brown, Jr. will hear arguments from the plaintiff children's attorneys from Children's Rights, a non-profit organization, and the New Jersey law firm of Lowenstein Sandler. Judge Brown will also hear from attorneys representing New Jersey and its child welfare administration, the Division for Youth and Family Services (DYFS).

WHERE:
U.S. District Court
Clarkson S. Fischer Federal Building
402 East State Street Fourth Floor
Courthouse 4A
Trenton, NJ

WHEN:
Wednesday, January 31
1:00 PM (starting time)

WHY:
DYFS is seeking to deny access to the federal courts to a plaintiff class of all children in foster care custody even though plaintiffs allege class-wide violations of their constitutional rights.

ATTACK ON REFORM LITIGATION

Defendants claim that children in DYFS custody who have constitutional claims against the State of New Jersey cannot be recognized in a class action regardless of how egregious their treatment by a dysfunctional foster care system.

"These are losing arguments that DYFS's high-priced Philadelphia lawyers have recycled from a similar child welfare case they defended there and lost" said Eric Thompson, the attorney for Children's Rights who will make the oral argument before Judge Brown. "As the Third Circuit held in resoundingly rejecting their similar attempt at closing the court house doors to a class of vulnerable children in the child welfare system there, class actions were in fact intended to facilitate such institutional reform litigation."

ATTACK ON NEXT FRIENDS

Defendants attack the ability of these foster children to sue through their next friends, as is required under the Federal Rules. They claim that the Plaintiff children's next friends are inadequate because some children had law guardians who could have represented them. Thompson states, "Even before the lawsuit was filed, the New Jersey Public Defender who oversaw the Office of the Law Guardian, Yvelisse Torres (appointed by Defendant Gov. Whitman), refused to allow any law guardians to participate concluding that the law guardians in New Jersey 'do not have the authority to appear as next friends in federal litigation.'"

Defendants also attack the good faith of the children's next friends who are all respected citizens who have shown a genuine interest in the children's welfare. They include two school teachers, a plaintiff child's former school principal, a psychologist, a former foster parent to two plaintiffs, a nurse, two attorneys, including a plaintiff child's court-appointed attorney, and a minister.

REJECTION OF CLAIMS

Defendants would have the Court reject three of the Plaintiff children, whose claims have become moot, based on an inapplicable procedural ground. For example, Defendants seek to disqualify four-year-old Sharon K, who moved to intervene in this case on July 6, 2000, alleging that DYFS had been blocking her adoption with the white foster parents she had been living with since birth because she is African-American. After Sharon K. joined the lawsuit, DYFS rushed her adoption through in less than a month. Defendants also seek to disqualify two-year-old Kyle J. who was placed with and adopted by a DYFS employee shortly after the lawsuit was filed. Defendants' belated attempt to rectify failures in these individual cases does not affect the continuing need for systemic reform on behalf of the class of all children in DYFS custody who have not benefited from being individually named in this lawsuit.

BACKGROUND

This class action Complaint was filed on August 4, 1999, by 20 children by and through their next friends, alleging that they are the victims of a New Jersey DYFS system that is incapable of protecting and caring for them and the others in DYFS care or custody. They alleged various federal constitutional and statutory violations that included, among others:

*poorly supervised and abusive foster placements;
*poorly trained and overwhelmed case workers; and,
*racially discriminatory foster and adoptive placement policies.

After the Court ruled on several initial motions recognizing that Plaintiff children had viable constitutional and statutory claims, Plaintiffs filed their Amended Complaint and the Second Modified Motion for Class Certification. This will be argued before Judge Garrett E. Brown of the U.S. District Court for the District of New Jersey.

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.