Kansas governor says she can’t be sued over foster care. Children’s attorneys disagree
Attorneys representing Kansas foster kids in an ongoing class action lawsuit allege that Gov. Laura Kelly is turning her back on the very children she for years has vowed to help and protect.
In a motion filed in the case late Thursday, attorneys for the plaintiffs insist that Kelly’s attempt to be dismissed from the lawsuit because she says she’s not directly responsible for foster care contradicts her previous work as one of the state’s most vocal child advocates.
Her request also goes against the actions she’s taken as governor in making decisions about how the child welfare system operates, the motion said. And, attorneys say, she shouldn’t be allowed to bail now.
“Governor Kelly’s motion to dismiss unpersuasively seeks to avoid legal responsibility for a crisis that is inescapably part of her own administration, a crisis she has openly accepted and in which she is actively involved,” said the response, filed late Thursday in U.S. District Court.
Kelly’s attorneys filed a motion in October asking the court to dismiss her from the lawsuit. The motion argued that the governor is not responsible for regulating the system that cares for Kansas’ most vulnerable children.
“Governor Kelly has no direct legal authority to administer the Kansas foster care system,” the motion said. “She does not run or manage the programs that the plaintiffs now challenge ... her secretaries of DCF, KDADS and KDHE perform these functions. Therefore Governor Kelly is entitled to sovereign immunity under the Eleventh Amendment.”
Kelly’s office said it’s routine to ask the court to dismiss a governor in lawsuits that involve other state agencies. The request, her office said, is to ensure that the “appropriate parties are engaged in the lawsuit.”
“The Kelly administration’s highest priority is the safety and well-being of all Kansas children,” said spokeswoman Lauren Fitzgerald in an emailed statement Friday. “A foster care system in turmoil was putting many children in harm’s way. The Department for Children and Families wasted no time adding dozens of new social workers, and implementing strategies proven to keep children out of the foster-care system.
“The Department for Children and Families has made progress in fixing a broken foster care system. Every child deserves to be in a safe, loving home. This administration won’t settle for anything less.”
The suit names as defendants Kelly; Lee A. Norman, secretary of the Kansas Department of Health and Environment; and Laura Howard in her capacity as secretary of both the Department for Children and Families and the Kansas Department for Aging and Disability Services.
Kansas’ child welfare system has been under fire for more than three years. Howard is the third leader in that time.
When Kelly became governor, advocates and lawmakers across the state had high hopes — because of her pledge during her campaign to make fixing the troubled child welfare system a top priority — 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 disturbing headlines about child deaths, mismanagement inside the agency and kids forced to sleep in offices overnight because of a lack of available beds.
As a state senator, Kelly had repeatedly said that having kids stay the night in offices indicated there were serious problems in the system. And soon after becoming governor, she told the Associated Press — according to Thursday’s motion — that “these kids are ultimately in my charge.”
But the motion cited a report that said in Kelly’s first few months as governor, more than 70 children had been kept overnight in the offices of the two nonprofit agencies providing foster care services for the state.
The Republican administration that served before Kelly seemed to stem the practice after threatening to fine contractors if they continued to allow children to sleep in offices overnight. Kelly’s administration has dropped that punishment, the motion said.
The motion also noted that Kelly repeated her commitment to fixing the child welfare system when addressing the Governor’s Early Childhood Symposium in October. Kelly told those attending: “We need a statewide effort and champion (for children) at the top. And that’s why I’m here...,” the motion said.
The class action lawsuit was filed in November 2018 on behalf of 10 children. The suit alleges that foster children have been treated so poorly that they’ve suffered mentally or run away from foster homes. In some cases, the suit says, they have been trafficked for sex, sexually abused inside adoptive homes or, in one instance, sexually assaulted inside a child welfare office.
Last fall, attorneys amended the suit and added four children. Some children had been removed because they had aged out or were no longer in state care.
At that time, attorneys said that the foster children were still being moved multiple times and subjected to night-to-night placements, which they said causes more instability and trauma. Those who filed the class action lawsuit include Kansas Appleseed, Children’s Rights, The National Center for Youth Law and local attorney Lori Burns-Bucklew.
Kansas is one of nearly three dozen states that have faced lawsuits since the 1980s asserting that they were further harming children they were supposed to protect. In the past two years alone, at least five states have been sued.
The Star recently reviewed four decades of lawsuits as part of an investigation into long-term outcomes for foster children across the nation and found some states are being sued today for the same issues that plagued other systems 15 to 20 years ago.
Howard said Friday she could not comment on the pending lawsuit but added that in the year she’s been in charge of DCF, the agency has taken many steps to improve child welfare in Kansas.
“This 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 to The Star.
She said the agency has worked to preserve families and keep children from coming into care when possible. As part of that effort, DCF continues to use Team Decision Making and a new program to help locate family connections for kids, she said.
“We are already seeing the results of these actions: fewer foster children are spending nights in offices and the overall foster care population is declining,” Howard said. “I believe these improvements can endure at a systemic level and am confident these changes put the agency on a trajectory toward a stronger system for Kansas children and families.”
This story was originally published February 14, 2020 at 12:37 PM.
