Can we sue our way to a better child-welfare system? Yes, according to Children’s Rights, a watchdog group that grew out of the ACLU and has filed class actions in almost half the states. The group’s mission is to “hold governments accountable for keeping kids safe and healthy” by pursuing “relentless strategic advocacy and legal action,” and it has won its share of battles. But whether children are safer or healthier as a result remains open to question.
In 2014, Children’s Rights sued Arizona, arguing that the state’s child-welfare system was undermining the health and safety of foster kids. The group noted that the state had “only 5,669 spaces in licensed foster homes available for 9,418 foster children who were not placed with relatives.” As a result of the shortage, many children had to “sleep in DCS offices because homes aren’t available.”
Foster care in Arizona was clearly in rough shape when the lawsuit was filed, but the situation has changed significantly over the last five years. The state elected a new governor, Doug Doucey, who appointed a new head of child welfare, Greg McKay. McKay, a former Phoenix homicide detective, was serious about getting the agency’s problems under control.
A 2017 article in Governing magazine, “How Arizona Fixed Its Broken Child Welfare System in 2 Years,” chronicled how the agency improved thanks to “lean management” techniques. “The backlog of cases used to be about 16,200,” writes J. B. Wogan. “Now it’s under 700 and shrinking. The average caseload used to be 145. Now it’s 22—just slightly above the recommended national standard of 20. And the time it typically takes to connect with the child abuse hotline, which used to be more than 12 minutes, is now 28 seconds.” Those numbers have since dropped further, but Children’s Rights has persisted in its lawsuit—and Arizona has continued to fight it.
Most states facing similar legal actions have settled, resulting in federal consent decrees; Connecticut remains under a consent decree dating from 1992. These decrees usually mandate spending more money and shrinking caseloads—arrangements that agency employees are happy to facilitate. But the decrees micromanage every aspect of an agency’s activities. The most recent report on Connecticut criticized the state’s lack of mobile technology to help caseworkers and also worried about the state’s progress on providing preventive-service programs for at-risk kids.
Many states could certainly benefit from better technology and programs, but is it the federal government’s job to oversee this process? The Supreme Court has suggested that for government officials to be culpable in these kinds of matters, they must act with “deliberate indifference” to constitutional rights in such a way as to “shock the conscience.” Does failing to provide e-tablets for social workers meet such a standard? Once states go down the road to settlement, there’s no turning back.
Next week, Arizona (represented by former solicitor general Paul Clement) will ask the Supreme Court to reverse the Ninth Circuit’s decision earlier this year to certify the foster children of Arizona as a “class.” The state’s brief argues that Arizona’s foster kids do not meet the standard for a class action because they did not all suffer the same injury as a result of the department’s actions (or inactions) and that the harm that they did suffer was not the result of a particular policy.
If the state loses, it will be on the hook not only for Children’s Rights’ legal fees but will also have to pay the group to monitor the state’s child-welfare system for years to come. For other states, these outlays have amounted to tens of millions of dollars, with little evidence that such monitoring does much to change the situation. For instance, most consent decrees mandate that social workers’ caseloads be capped, but some states have sought to experiment with a team-based approach to case management, an innovation not anticipated by the decree. Other decrees strictly limit the amount of congregate care a state can provide—but group homes are often the only setting capable of handling older children with serious behavioral problems. In fact, when group homes are closed, and children are sent to live in foster families who can’t handle their behavior, these children often get moved repeatedly—and a high number of foster placements is another ground on which Children’s Rights has sued.
State child-welfare systems are often deeply dysfunctional. It would be reassuring to believe that a big lawsuit bringing them more money and attention would set things right. But, as is often the case, the only clear winners in the Arizona case will be the lawyers.