Attorneys representing foster children in Kansas have filed a motion to amend their ongoing class-action lawsuit, insisting even more vulnerable kids in the state are being harmed.
Since the suit was filed in November, children still bounce from placement to placement and are subjected to “night-to-night” stays, only compounding the instability they feel, according to court records filed late Friday. Children in state custody also continue to be deprived of the mental health treatment they need, attorneys said.
“We’re very concerned that the same problems continue,” said Teresa Woody, litigation director for Kansas Appleseed Center for Law and Justice, one of those that filed the class-action lawsuit in November. “There are a lot of plans, but so far, it’s not actually getting better for these kids.”
As part of the request to amend the lawsuit, attorneys added four new children. When attorneys initially filed the suit nine months ago, they represented 10 children in state care. Two of those kids aren’t in the custody of the Kansas Department for Children and Families anymore, so they are no longer part of the litigation. The suit now includes 12 children.
“The named plaintiff children in this action have been moved anywhere from 10 to over 100 times while in DCF custody,” the motion said. “Much of that churning has occurred in just the past one to two years.”
DCF Secretary Laura Howard said the department typically does not comment on pending litigation.
“However, the agency is committed to improving outcomes including strengthening families, reducing the length of stay in foster care, implementing evidence-based practices to engage families and placement stability,” Howard said in an email statement Tuesday.
She pointed to other initiatives the agency has worked on, including the implementation of the Family First Prevention Act and team decision making.
“DCF believes these improvements can endure at a systemic level,” Howard said. “And we are confident that these changes put the agency on a trajectory toward a stronger system for Kansas children and families.”
A 7-year-old boy, known as E.B., is one of the new plaintiffs. He’s been moved 35 times since April 2018 and was “often forced to spend his days in the KVC contract agency offices between night-to-night placements.”
One 17-year-old girl, known as R.R., has been in more than 100 placements in nearly three years, including nights in a KVC office, the motion said.
Another child, 12 years old, is referred to as M.A. and has been in foster care for six years. Since January 2017, the motion said, he’s been moved “at least 62 times,” including 16 placements in the past five months.
“Though diagnosed with ADHD, oppositional defiant disorder, disruptive mood regulation disorder and anxiety, M.A. has not received adequate or consistent mental health services while in care,” according to a news release describing Friday’s filing.
The new motion, which is unopposed, went on to say that the lack of stability and needed mental health treatment has disrupted M.A.’s education. He’s currently reading at a third grade level, the motion said.
“What I think would shock most people is the thought of having numerous children of a variety of ages sitting around in an office all day and not actually devising some kind of plan to do something else,” said Lori Burns-Bucklew, a Kansas City attorney and accredited child welfare law specialist, who joined Kansas Appleseed, the National Center for Youth Law, and Children’s Rights in filing the suit. “Like drive them six blocks down the road to a school.”
The class-action suit names as defendants Kansas Gov. Laura Kelly; Howard; Lee A. Norman, secretary of the Kansas Department of Health and Environment; and Howard in her capacity as Secretary of the Kansas Department for Aging and Disability Services.
In their April 29 response to the original complaint, the defendants denied that they had caused injury to any of the plaintiffs.
“Plaintiffs have suffered no actual injury as a result of the actions or inactions of Defendants,” the document said. It added that “Plaintiffs’ own conduct was a contributing cause of injury alleged by Plaintiffs.”
“Any harm to Plaintiffs is a result of negligent conduct of someone other than Defendants,” the response said, “and the negligent conduct of Plaintiffs or someone other than Defendants proximately caused and contributed to Plaintiffs’ alleged injuries or damages.”
The defendants denied violating the constitutional rights of any of the plaintiffs.
“Acts of mere negligence, the exercise of what may appear in hindsight to have been mistaken or poor judgment under the circumstances, a delay in the provision of healthcare, and/or differences in the appropriate provision of healthcare does not establish a violation of any rights or privileges secured by the Constitution or laws of the United States,” the document said.
In their response, the defendants admitted that each plaintiff had been moved at least eight times and that plaintiff R.M. had been moved more than 100 times. But they denied “that the movements of the named plaintiffs are typical of children in the foster care system generally” and that the agency engaged in the practice of “churning,” or moving children from placement to placement.
The defendants said that if the plaintiffs’ lawsuit is successful, it would harm DCF financially and cause major changes in the way it runs its programs. They asked for the court to dismiss the lawsuit and require the plaintiffs to pay their costs and “reasonable attorney’s fees” associated with the case.
The goal of the litigation isn’t to receive money, but to fix the system for the children described in the suit and others that come after them, attorneys who filed the suit have said.
“In a repetitive, destabilizing cycle, children are regularly forced to sleep for a night or several nights anywhere a bed, couch, office conference room, shelter or hospital can be found,” the motion said. “For days, weeks, or even months at a time, they spend their nights in these short-term placements and their days in agency offices waiting to find out where they will sleep next, only to repeat the same cycle again.”
The Star requested from DCF the number of children who have slept in offices across the state since February. According to the agency, dozens of children have slept in offices from March through July. In May alone, 39 children stayed overnight in an office. In July, 33 did. That has dropped to nine children in August.
The class-action suit asks, among other things, that children no longer be put in short-term and night-to-night placements, and that they begin receiving initial trauma-related screening. It also is requesting that the defendants create and implement trauma-informed practices to help children heal, as well as ensure children have access to the mental health treatment they need.
“This is a crisis,” Burns-Bucklew said. “I don’t see the urgency and persistence that I believe this problem deserves.”
For nearly three years, Kansas’ child welfare system has been under immense fire. Howard, the current secretary of DCF, is the third leader in that time.
And when Kelly became governor, advocates and lawmakers across the state had high hopes that change would come quickly. They say that hasn’t happened.
Before she was elected to lead the state, Kelly had been a vocal member of a legislative task force formed to come up with ways to improve the child welfare system. The system had weathered bad headlines about child deaths, mismanagement inside the agency and a lack of beds and foster homes for the growing number of kids in care.
The task force reconvened in July. Kelly told those gathered that “we made significant progress” but that there was still a lot left to do.
Howard, who also spoke to the group, cautioned that changing the child welfare system will take time.
“This really is going to be a marathon,” Howard said. “The system has so many challenges and we can’t fix everything overnight.”