The Department of Children's Services struggles to comply with the historic 'Brian A.' class-action settlement
by Mike Gibson
Charles C. wears a helmet during his waking hours, a protective measure to insure he won't injure himself in the moments he eludes his caretaker's watchful eye. Taken into state custody as an infant, the Shelby County child tested positive for cocaine at birth, the result of his mother's addiction.
He was in some part overcoming the effects of that early poisoning, however, until state officials removed him from a stable foster home and returned him to his mother's custody at age 5. It was there that he ingested a portion of her drug stash one afternoon, was overcome by a violent seizure, and sustained massive brain damage. He was eventually cleared for adoption, but state Department of Children's Services (DCS) officials had done little to secure an adoptive home two years later.
Charles' older brother Jack, removed from their mother's custody at age 3, had seen 23 group home and foster placements by age 14. Though he displayed considerable emotional and behavioral impairment stemming from his turbulent childhood, Jack received little in the way of counseling or therapy. Instead, he was placed on a medication that triggered hallucinations; he was removed from one foster home after he threatened to jump off a roof while in the throes of a delusional fit.
Amy D. of Knoxville was taken into DCS custody in 1997 at age 14, after investigators learned of her parents' long history of abuse and neglect. Amy also had severe emotional and behavioral problems. But rather than securing a stable placement and providing appropriate therapeutic redress, DCS officials moved her 14 times in roughly two years, with placements that included group homes, hospitals, and an emergency shelter.
In one facility, Amy was placed on psychotropic medication, which left her in an almost-constant stupor. A social worker who visited her there reported that she was living in a filthy room, over-medicated to the point that she could barely speak. Her bodyweight had more than doubled from 115 to 240 pounds.
At age 9, Brian A. had been in DCS custody for four years, having been taken along with five siblings from his abusive, drug-addicted biological parents. During his initial foster placement, he shared a small bedroom with six other foster children; his foster parent reportedly disciplined them by beating them with a cane.
Brian remained in that home for three years before being moved to another foster home and then to an emergency shelter, a facility intended for stays of no more than 30 days. He languished there for the better part of a year without a caseworker, without a permanency plan, without hope.
Such was the lot of these and many other children in state custody when Children's Rights, a child advocacy group out of New York, and several in-state law firms filed suit against then-Gov. Don Sundquist and then-commissioner of DCS George Hattaway in May 2000. The suit was filed on behalf of Jack, Charles, Amy, Brian, and four other so-called named plaintiffs as well as all other children in state custody.
Now commonly known as the Brian A. case, the class-action lawsuit sought long-absent rights and protections for kids entrusted to the care of the state's chief children's services outlet.
The settlement that emerged in 2001 after some 10 months of legal wrangling was landmark, even in a time when several other states had faced and settled similar class actions. In short, it presented a plan for the wholesale rethinking of a flawed institutional culture.
But this February brought a reality check, in the form of an interim progress report filed by a court-appointed monitor. While the report lauded some DCS changes, it also chided the department for shoddy record-keeping, poor communication, and a lack of consistency in planning for the welfare of children in its care.
Some of those problems were glaringly evident when in February, acting on the concerns of a Davidson County judge, the monitor cross-referenced a sampling of foster children from DCS computer files with other departmental records. The two sets of records differed as to where half those children were placed, prompting her to order DCS to make a full accounting of all 9,748 children then in its custody. To all appearances, the department was still afflicted with grave organizational failings.
All of which perhaps points to the fact that a system that has been so flawed for so long doesn't fix easily—certainly not within the space of 18 months. Though he recognizes that DCS has made progress, Children's Rights Associate Director Ira Lustbader says that "this remains a serious, serious problem. It remains a very real possibility that a child could be lost in the system outright."
Most observers will acknowledge that child welfare systems in this country have been in disarray for years, forever hampered by bureaucracy, a lack of resources, public ambivalence and sometimes even outright apathy with regard to the issues inherent to them.
"Why do problems exist? Because children in foster care don't have any voice," says Knoxville attorney Wade Davies, one of the lawyers representing the Brian A. plaintiffs. "They don't come from influential families, and a lot of people just don't know anything about the situation they're in."
But while many states face problems similar to those that persist here—"I tried to think of at least one place where children's services are doing a bang-up job, and everyone is happy," says one local service agency administrator, "and I couldn't do it."—Tennessee's child welfare outlook has been bleaker
than most.
Lustbader states unequivocally that when Tennessee's child welfare services first came to the attention of the Children's Rights organization some years ago, "it was among the most dysfunctional and even dangerous systems we'd seen in years."
Prior to 1996, children's services here were divvied raggedly among six different state agencies, including the Department of Mental Health, the Department of Education and the Department of Human Services. Reform efforts in the guise of the so-called "Children's Plan" in 1991 proved ineffectual, and in '96 the state endeavored a wholesale restructuring, putting all of its child welfare outreach under the unifying umbrella of the Department of Children's Services.
DCS is charged with the care of all children whose relationship with a legal guardian has been either severed or jeopardized, most often due to abuse or neglect. The department is also charged with investigating alleged instances of such mistreatment, and with achieving safe, satisfactory outcomes for those children it finds to be so afflicted.
Ideally, those children are ultimately kept in or restored to their original homes. When that option proves untenable, it is the responsibility of DCS to seek termination of parental rights and to secure a suitable adoptive placement.
These tasks call for a host of diverse resources and services, some of which DCS provides directly with its teams of investigators, caseworkers, and the 15 group homes it operates statewide. Other, more complicated services, such as providing for the extensive therapeutic, educational, legal, and even medical needs of many children and their family members, are supplied by the hundreds of private and non-profit contractors DCS employs across the state.
According to Lustbader, Children's Rights watched with great interest the restructuring of Tennessee's child welfare services in 1996. The 30-year-old non-profit had on many previous occasions used litigation as an instrument of institutional reform, but decided at the time to let the realignment take effect before pressing legal action here.
By 1998, Lustbader says his organization had seen ample evidence that the restructuring was doing little to impose order on the state's muddled system. Children's Rights launched an extensive 18-month investigation, involving dozens of fact-finding trips and the canvassing of literally hundreds of parents, children, foster parents, former DCS workers, teachers, advocates—"anyone who had an interest or an observation to make," Lustbader says.
The investigation laid the groundwork for the March 2000 lawsuit, which catalogued a host of gross individual and systemic failings. Besides describing the plight of the eight named-plaintiffs, the veritable poster children for those failings, the complaint also cited disturbing statistical measures of them.
It noted, for instance, that 17 percent of caseworker positions statewide were left unfilled in 1998; that an independent study found 27 percent of the state's assessments of incoming children to be lacking or incorrect; that it was not unusual for caseworkers to be responsible for 40 and more children at a time.
It documented "emergency placements"—children placed in 30-day shelters—that lasted as long as 14 months (four to six months was common), and found that some case managers failed to visit children with whom they were charged for months and even years at a time. Perhaps most shocking was the fact that more than 20 percent of the children in state custody at the time of the complaint—around 2,000—had been moved through 10 or more placements over the period of their custody.
The battle raged in U.S. District Court for nearly a year. Lustbader believes the court's denial of the state attorney general's request to have the lawsuit dismissed was a turning point. Shortly thereafter, he says DCS Commissioner Hattaway "stepped forward" and enabled the Brian A. settlement.
Combining structural changes with a range of outcome-related measures, the settlement secured basic rights for children in custody, and established a three-year timetable for the state to meet a series of qualitative and quantitative goals.
Functionally, it created a timeline that requires DCS to establish a long-range "permanency plan" for children within 30 days of their entering custody, and to adhere to a series of firm deadlines thereafter in order to advance the kids along the continuum of that plan. It gives DCS case workers 22 months to reunite children with their original families in instances where that goal may be achievable, and provides for rapid progress toward adoptive proceedings in instances where it's not.
The settlement also limits the number of "disruptions"—changes in placement—children are to be subjected to while in state care (no more than two per instance of custody), and caps the number of children individual caseworkers may oversee at 20.
"We were very pleased with the settlement," Lustbader says. "It was—and remains—the most comprehensive and innovative child welfare settlement of its kind in the country."
In the gray light of an overcast spring afternoon, four teens in baggy trousers and jerseys dribble a ball in the parking lot of the Westview Center, a 12-bed DCS group home settled in next to the department's Knox County regional office on Middlebrook Pike.
"Bobby don't live here no more," one of the youths says jovially when a visitor arrives looking for Bobby Leverett, Knox County's regional administrator. The boy relents after a moment, and points toward Leverett's office, smirking: "You tell Bobby I said to have them papers I need stacked on my desk ASAP."
Part of the joke is that nobody possessed of sound judgment would tell Bobby Leverett what he ought to do; one might make a request, very politely, but one certainly wouldn't make demands ASAP. Leverett is a huge man, almost lumbering, with engulfing hands and an enormous desk that makes a more modestly-proportioned visitor feel as if he could comfortably rest his chin on its surface.
A former correctional services major at East Tennessee State University (minor in psychology) Leverett worked 14 years as a senior probation counselor for Knox County Juvenile Court. He later served on the management team of a juvenile corrections facility in Dandridge, and worked as a team coordinator for the local DCS office before taking over its directorship from the now-retired George Harkelroad last year.
"In terms of the principles of the Brian A. lawsuit, I can't argue with them," Leverett says, echoing the sentiments of many other DCS employees who were apparently fed up with the stifling bureaucratic inertia that preceded Brian A.
"Anyone who has been in foster care and who is sincere about children's welfare can agree with (the Brian A. principles). I think our department recognized this, and that's why we entered into the settlement agreement. I feel the department as a whole felt the way I do."
According to Leverett, DCS's biggest challenge is to change an institutional mindset that has favored convenience, quick answers, and red tape over the kind of permanency planning and follow-through that makes for better outcomes for the children in custody.
"If I had my wishes, all children would be placed in a family-like setting; studies have proven over and over that residential treatment centers aren't a good environment in which kids can develop," Leverett says.
"There's not been enough focus on placing children in family-like settings. It's been the way states, departments, and communities have looked at foster care for a long time, that if you have a child with problems, the quick fix is 'out of sight, out of mind,' as in a residential treatment center. Until the mindset changes, we'll continue to have children in centers who could be in less restrictive settings."
The ways to achieve a new focus are manifold, says Leverett. He stresses the need for creativity in seeking "wrap-around" services—therapeutic or other services that may enable a child to remain at home rather than enter custody. He also believes caseworkers must be ever more diligent in trying to identify foster placements within the child's network of family, friends and community.
"There are a limited number of people willing to foster our children," Leverett says. "That's why we should look on the front end to keep children at home with wrap-around services, or place them with other people in their network."
Leverett says the local DCS office is in compliance with most of the Brian A. provisions. Perhaps most notable is the fact that the 700 or so kids currently in custody in the region are split among 116 case managers, a favorable ratio of kids-per-caseworker even considering that some workers will oversee more children than others because of differences in classification.
One area of concern is the recruitment of foster parents, Leverett says. There are currently 190 foster homes in the region's pool, an improvement over years past, but still insufficient.
"But first we have to change the mindset of making placements," he says. "I have to believe in the principal of making more family-like placements, and then I have to encourage my management staff to buy into it."
Statewide, progress lags in several key areas. February saw the release of the first of three Brian A. progress reports to be issued by Sheila Agniel, the monitor appointed in federal court to oversee the DCS restructuring. While Agniel (who declined to be interviewed for this article) found DCS to be in compliance with the spirit if not always the letter of the settlement order in several respects—not the least of which is the hiring of hundreds of new employees and a favorable change in the ratio of caseworkers to children—some parts of her report would seem scathing were they not couched in a veneer of obtuse verbiage.
At one point, the report notes that "(DCS) exhibits a high level of tolerance to the impediments created by the lack of effective lines of accountability, authority and responsibility."
The report is particularly critical of DCS's information systems, noting that "DCS has not relied historically on data analysis and reporting to direct decision-making. As a result, the data required for effective monitoring did not exist at all in some instances..."
If all that sounds like a tortuously wrought description of a still-chaotic bureaucracy, that's because it is.
"We've seen three different department heads in less than two years," Lustbader says. "They are struggling to make training changes so workers are better informed, and there are serious problems in the state's data system. We have a long way yet to go."
"When DCS was formed, you had six different departmental cultures merging," explains DCS Director of Communications Carla Aaron. "The kinks are still being worked out. That, and we never had adequate staff. The lawsuit brought all that to the forefront. It's created a roadmap for us."
Aaron cites reasons for optimism. DCS has requested and received from the state legislature additional funding for staff each of the last three years, and has added more than 600 front-line personnel—investigators, caseworkers, and supervisors—over that period.
Caseloads have been reduced such that most of the state's 12 regions are in compliance with Brian A. standards, she says. And the wheels have been greased on the state's sluggishly functioning adoption program; 900 adoptions were finalized last year, a state record, up from 646 the year before, and only 197 in 1997, before Brian A.
"We've never had that many in our history, and those numbers feed directly back into the results of the lawsuit," Aaron says. "Caseloads are going down. Workers are doing more work with children. We're beginning to see the fruits of our labor pains."
But still frighteningly problematic is the department's notoriously poor record-keeping. In December, a Davidson County judge made plans to buy Christmas presents for a handful of local DCS foster children, and found that the local office wasn't sure where some of the kids were.
When informed of the problem, Agniel cross-referenced the computer files of 200 DCS kids with other departmental records. In about half the case files she examined, the records did not agree as to the current placement of the children. Agniel ordered DCS to find and account for all of its children post haste.
Within two weeks, the department had done so, though not without perspiration, as case managers and supervisors visited hundreds of shelters, foster parents, group homes and families across the state to ascertain the status of all the kids. In the end, current DCS Commissioner Michael J. Miller admitted that departmental records on more than 1,000 children were outdated, ceding that "the levels of incorrect data are, of course, completely unacceptable."
Why the DCS database has been so discrepant is in some part a mystery, even to watchdogs at Children's Rights.
"We're still trying to get to the bottom of that," Lustbader says. "It could be problems with updating the information, computer problems, a number of things."
The flaws ostensibly derive from the department's TN Kids electronic data system, which relies on regular updating from caseworkers as well as various checks and re-checks by supervisors to stay current.
"It's not poor casework; it's documentation that's the issue," Agniel says. "A lot of it was that we weren't keeping up with entering information.
"The issue has been brought to light now with the administrative staff. Lots of what we do is crisis-driven. Things come up suddenly, and we place so much priority on people-work that sometimes the paper work doesn't get priority. We need to look at it. We need good documentation in our records."
Though Charles C. still wears his helmet at age nine—in terms of emotional and intellectual development, he's at roughly the level of a two-year-old—he has been returned to the custody of one of his early foster families. His previous stay with them was a high point in the needy child's life, and they are now in the process of adopting him.
Charles' brother Jack has also been returned to an earlier foster parent, along with several siblings who were likewise taken from his birth mother's custody. Soon to turn 18, Jack will receive help from a DCS program that teaches independent living skills and provides secondary education opportunities to children at or near the age of consent.
"We're pressing the department to make sure he gets the therapeutic supports he'll need to make it on his own," Lustbader assures.
Amy D. still struggles in some respects, Lustbader says. But like Jack, she benefits from DCS continued care programs, and at age 18 she has hopes of attending college with departmental help.
Brian A. now has foster parents who have agreed to adopt both him and a sibling. He's also lent his name (or at least his pseudonym) to an action and a movement that may forever change for the better the lives of children in state custody.
Despite the obvious stumbling blocks, Lustbader says he's still on balance optimistic about the progress of DCS in Tennessee. In addition to hiring hundreds of new caseworkers, the department has established an overseeing quality-assurance unit to review current cases to insure Brian A. compliance.
Also significant is the fact that DCS was recently able to close down the Tennessee Preparatory School in Nashville, a 220-bed residential facility for children, having found other, more nurturing options for the kids who would otherwise occupy it.
"There's no question the state has enormous challenges ahead," Lustbader says. "But I do think they have enormous opportunities with a new gubernatorial administration. And whatever happens, you can be sure we'll be pushing them as hard as it takes."
April 17, 2003 * Vol. 13, No. 16
© 2003 Metro Pulse
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