Settlement of Class-Action Lawsuit to Launch Court-Ordered Reform of New Jersey's Foster Care System

PRESS RELEASE

State consents to unprecedented overhaul of Division of Youth and Family Services guided by independent panel of experts

(Trenton, New Jersey, June 24) - All parties in Charlie and Nadine H. v. McGreevey agreed today to resolve the class action lawsuit in an unprecedented approach to full-scale reform of New Jersey's troubled Division of Youth and Family Services (DYFS) that will be enforceable in federal court. For the first time in New Jersey's history, DYFS will be required, by court order, to work closely with a panel of independent experts (Panel) who will guide and assist in a comprehensive reform of the state-run child welfare system.

The Settlement Agreement (Agreement) identifies six areas for emergency action, including:

*immediate funding of an additional $22.35 million for hiring workers and funding space and equipment needs of the new workforce;
*an additional $1.5 million for immediate recruitment of additional foster parents;
*immediate safety assessments of children in foster care and review of institutional facilities to make sure children are safe;
*immediate review of licensing standards and hiring processes;
*immediate procurement for urgently needed supplies (automobiles, cell phones, computers) for DYFS workers.

The Agreement acknowledges that the additional money is "only the immediate starting point in securing the resources necessary to accomplish the goals and principles of this Settlement Agreement."

The Panel will have free access to all DYFS staff and documents it deems relevant to its work and its recommendations on changes to DYFS will be enforceable in court. Funded by the Annie E. Casey Foundation, the team of up to five experts will meet with state representatives within three weeks to begin to create a plan of reform that will include outcome measures to determine if DYFS is actually improving the lives of children.

"This is one of the strongest settlements 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 Charlie and Nadine H., along with the co-counsel law firms of Lowenstein Sandler of New Jersey and White and Case of New York.

Lowry continued, stating, "The state has acknowledged it needs outside expert assistance to ensure immediate and real change in the lives of foster children. This settlement also requires that the state provide the necessary resources to make sure that children get what they need."

A series of concrete, measurable results to establish reform of DYFS are set forth in the Agreement that is being signed today and will be presented for court approval to U.S. District Court Judge Stanley R. Chesler by counsel for plaintiff children and by counsel for the state, the Attorney General of New Jersey and the state's private counsel, the Philadelphia law firm Wolf, Block, Schorr and Solis-Cohen. Pursuant to federal court procedure, Judge Chesler will decide whether the agreement is a fair, reasonable, and adequate settlement of the lawsuit after a public hearing scheduled for September 2 of this year.

While this settlement creates an oversight panel similar to the one created several years ago in a New York City lawsuit, Marisol v. Giuliani (the Marisol panel), this panel has far more authority than the Marisol panel. The Panel in New Jersey:

*Can disapprove of the state's plan, in which instance, the case returns to court with liability conceded for a court ordered remedy;
*Will set specific legally enforceable outcomes for children that the state must achieve;
*Will determine the specific aspects of the state's plan that will be legally enforceable by plaintiffs;
*Can determine that the state is making insufficient progress in certain areas, within the initial two-year period, in which case the plaintiffs can seek court enforcement.

In addition, after an 18-month period of oversight, the Panel will dissolve, a monitor will be put in place, and plaintiffs will be able to enforce all aspects of the settlement. Unlike the Marisol panel, whose advisory scope was limited to issues in the lawsuit, the New Jersey Panel has authority over all aspects of DYFS, whether or not included in the lawsuit.

The innovative Agreement settles, and moves into a new phase, the class-action lawsuit, which sought reforms to benefit the approximately 11,000 children who are dependent on DYFS for their care and protection. Under the Agreement, the district court will have continuing jurisdiction to ensure compliance, enforce the Settlement, and enter further orders or impose sanctions if necessary.

The Panel will work with the state to create a comprehensive plan of reform (the Plan) within six months, aimed at improving the entire child welfare system. The Plan will be incorporated into the Settlement Agreement and be enforceable by the court. For the first 18 months after the Plan goes into effect, the Panel will monitor and report on compliance with the Agreement. It will have access to all DHS and DYFS records and the power to collect information and to determine whether the State is making the reforms called for by the Agreement. The Panel will issue public reports on the State's progress in reforming the agency. Thereafter, an independent monitor will oversee compliance with the Settlement. Children's Rights will also have access to all information compiled by the monitor to ensure enforcement. Beginning in 2006, defendants can ask the court to terminate the Agreement if they can demonstrate continuous substantial compliance with the Agreement for a two-year period.

"The State is to be commended for settling this lawsuit and making a commitment to finally getting real reform underway as soon as possible," said Susan Lambiase, a lead attorney for Children's Rights on the case. "New Jersey's foster children have waited far too long to get to this point. Children living in unsafe conditions in foster homes and group facilities should not have to wait another day for protection. This Settlement Agreement deals both with the emergency situation facing the child welfare system and allows for a careful planning process with the assistance of neutral experts."

Children's Rights' co-counsel in the class-action, Lowenstein Sandler and White and Case, have made a substantial contribution to the results achieved today by their commitment of resources and thoughtful involvement in this reform effort.

Major terms of the Agreement in Charlie and Nadine H. v. McGreevey include the following:

Scope:

The Agreement covers all aspects of the child welfare system, even those not addressed in the lawsuit.

Improved Outcomes For Children:

The Agreement sets a minimum of 11 outcomes measures to determine if the State is making progress in improving the lives of children. They are:

A. Decrease length of time in care for children with a goal of reunification.

B. Decrease length of time in care for children with a goal of adoption.

C. Increase proportion of siblings in foster care who are placed together.

D. Increase proportion of children in foster care who are appropriately placed with relatives.

E. Increase proportion of children in foster care who are placed in their home neighborhoods.

F. Decrease incidence of abuse and neglect of children in out-of-home care.

G. Decrease proportion of children in out-of-home care who are placed in congregate settings.

H. Decrease average number of placement moves experienced by children while in out-of-home care.

I. Increase the proportion of children in care, and their families, who receive the services they need.

J. Decrease the rate of re-entries into out-of-home care.

K. Reduce the number of adoptive and pre-adoptive placements that disrupt.

More outcome measures may be added by the Panel.

Areas Of Immediate Action:

*$23.85 million in funding for new workers, space, equipment and foster homes

*The State must take steps to obtain $14.3 million by August 1, 2003 to hire additional case managers, line supervisors and other essential DHS and DYFS personnel in order to reduce caseloads and fund space and equipment needs of new workforce.

*The State must allocate an additional $8.05 million effective July 1, 2003 to support
additional hiring and space and equipment needs of new workforce.

*The State must also allocate $1.5 million for the immediate recruitment of new foster homes.

Emergency Measures to Protect Children:

Within 120 days, the Office of the Governor and the Office of the Special Deputy Commissioner of DHS must develop and implement plans approved by the Panel and carry out the following emergency measures:

*Conduct immediate safety assessments and take action as needed to protect children, including removing them from unsafe or high-risk placements.

*Review facilities that may be high-risk living situations for children, including but not limited to four facilities named by plaintiffs, including: Arthur Brisbane Child Treatment Center, Vision Quest and Newark Transitional Supervised Living Programs.

*Review and improve licensing standards of homes and facilities for out-of-home care
Review and improve procurement procedures
Within 90 days, procure needed cell phones, automobiles, computers and supplies for staff
Review the hiring process to streamline hiring of staff.

Child Welfare Panel:

The parties agreed to establish a New Jersey Child Welfare Panel, composed of experts in child welfare and related fields, including Judith Meltzer, Steven D. Cohen, Kathleen Feely, and Dr. Robert Johnson, and an additional member to be named. Funded by the Annie E. Casey Foundation, the panel will:

*Meet with the State within three weeks to begin a process that will result in the State issuing within six months a plan to address every aspect of the child welfare system
*Approve the Plan or tell the state how to fix the Plan
*Have the authority to reject the Plan or the revised plan
*Set numerical percentages and timeframes for the outcome measures for children
*Provide technical assistance to the State to assist in the implementation of the Plan for 18 months
*Issue public reports on the State's progress and compliance with enforceable provisions and be able to conclude at any time that the State's compliance with any provision is seriously inadequate.

If the Panel decides to reject the Plan, the parties will resume the case in court, but, in that event, the state will enter into a stipulation admitting that it is liable for violating the substantive due process rights of the plaintiff children and that there is a need for injunctive relief, and the case will proceed directly to a determination of what kind of relief should be entered by the court.

Background on Charlie and Nadine H. v. McGreevey:
August 4, 1999: Charlie and Nadine H. v. Whitman, a federal civil rights lawsuit, is filed in the U.S. District Court for the District of New Jersey charging 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.

March 8, 2002: Judge Garrett E. Brown of the U.S. District Court, District of New Jersey, rules to grant class certification in the lawsuit, allowing the federal civil rights lawsuit to move forward, affirms the lawsuit's contention that foster children have a legal right to turn to the courts for protection and to pursue their claims that DYFS is violating their constitutional rights and putting their lives and well-being in danger, and calls for a new phase of fact-finding about the failings of DYFS.

July 3, 2002: Rejecting strenuous objections from the State, Magistrate Judge John J. Hughes of the U.S. District Court for the District of New Jersey, directs that the state child welfare system grant experts for plaintiffs in the lawsuit immediate access to 500 children's case files, allowing plaintiffs to collect information concerning harm to children while in the State's foster care custody.

February 2003: Mediation is ordered by the court and intensive negotiations begin among the parties.

March 20, 2003: Magistrate Judge John J. Hughes rules that certain documents collected during discovery in the lawsuit can be released to local and national media. Judge Hughes accepts arguments by Children's Rights, The New York Times and The Star Ledger that the documents should be made public. He rejects arguments by the New Jersey Attorney General and DYFS to keep the records from public view.

[A summary and full copy of the Agreement are available upon request.]

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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