Foster Care Reform Update

3/12/2007

INTRODUCTION

Welcome to the second Foster Care Reform Update! This month’s update features our first “Policy Spotlight.” The first Policy Spotlight provides a review of Carson P. et. al. v. Heineman, Appleseed’s class action lawsuit seeking systemic reform of the Nebraska foster care system. The Policy Spotlight will be a recurring part of the update. This month’s update also includes a special section we’re calling “Behind the Update,” which provides an introduction to the staff and volunteers currently working at Appleseed on child welfare issues.

As always, please contact us if Appleseed can be of any assistance on systemic issues that arise in your practice.

Sarah Helvey
Staff Attorney
Foster Care Reform Legal Resource Center

POLICY SPOTLIGHT

Carson P. et. al. v. Heineman
Since its inception, Nebraska Appleseed’s Child Welfare System Accountability Program (CWSAP) has worked for comprehensive reform in Nebraska’s child welfare system. On September 19, 2005, after years of thorough investigation, Nebraska Appleseed, along with a stellar legal team, filed a long-awaited class action against the State of Nebraska in U.S. District Court on behalf of the more than 6,000 children in state foster care – Carson P. et. al., v. Heineman, et. al., 05CV3241, (Judge Kopf) (Magistrate Judge Piester). The suit alleged that Nebraska’s child welfare system violated the constitutional and statutory rights of foster children by, for example, moving them too frequently and to inappropriate placements, by leaving them too long in emergency shelters and temporary placements, by placing infants and other very young children in emergency shelters, by overcrowding foster homes, by allowing abuse and neglect in foster care, by overusing institutional care, and by leaving children in state custody too long. The suit alleged that these problems resulted from a severe shortage of foster homes, high caseloads and turnover among child protection workers, lack of basic health services for foster kids, poor monitoring of child safety, poor planning and services to move children out of foster care and into permanent homes, and inadequate payments to foster care providers. Nebraska Appleseed was joined as co-counsel on the lawsuit by local and national law firms: Children’s Rights, a national advocacy group, of New York City; Ogborn, Summerlin & Ogborn, P.C. of Lincoln (Gene Summerlin and Marnie Jensen); and DLA Piper Rudnick Gray Cary US LLP (partners from their Chicago office are participating). Joining the lawsuit “of counsel” were American College of Trial Lawyers, Nebraska Chapter, members from Woods & Aitken (Ed Tricker); and Gross & Welch (Tom Grennan). Cline, Williams, Wright, Johnson & Oldfather LLP was also actively involved in the lawsuit until late 2006 due to the tragic death of Kevin Colleran, the American College of Trial Lawyer member on the case from Cline Williams.

Unfortunately, in January 2007, Judge Richard Kopf chose to not to hear the claims of these young Plaintiffs and dismissed the case. Judge Kopf adopted in full what Nebraska Appleseed believes was the erroneous August 16, 2006 Report and Recommendation (R&R) issued by Magistrate Judge Piester on Plaintiffs’ Motion for Class Certification and Defendants’ Motion to Dismiss. Specifically, after redefining the class, the court found that the redefined class did not meet the requirements of typicality or commonality. In addition, the R&R questioned the motives, integrity, and adequacy of the earnest and caring persons serving as Next Friends for the minor Plaintiffs. With regard to the motion to dismiss, the district court employed the extraordinary measure of abstaining from the case pursuant to Younger v. Harris, finding, erroneously, that any injunctive relief the Court might grant in this case would unduly interfere with the Nebraska juvenile courts. The Court also found that the Plaintiffs’ constitutional claims and the resulting harms could be addressed in the juvenile courts. Finally, the decision finds that there is no private right of action under the federal statutes at issue, with the exception of any claims brought under the Early Periodic Screening and Diagnostic Testing requirements of the Medicaid Act. Plaintiffs strenuously objected to the R&R and, pursuant to the Rules, filed those objections with the District Court.

Underlying the entire R&R, and therefore, the district court decision, is the assumption that there are significant reform efforts already underway which make this class action unnecessary. While Nebraska Appleseed is generally supportive of additional efforts to improve aspects of Nebraska’s failing foster care system, the efforts made thus far have not addressed the system-wide problems at the executive agency and resulting harms targeted in this lawsuit. The Plaintiff children came to the federal forum because supposed efforts at reform have failed. Prior studies and “reforms” only serve to document the long history of problems and harms to children in Nebraska.

Nebraska Appleseed is gravely disappointed with Judge Kopf’s decision to dismiss this case. With this decision, the Court relegates these children to seeking systemic relief in their individual juvenile cases where that very systemic relief is not available. The child welfare system is failing the children it is legally obligated to care for. This decision tells the children that they have no recourse in the federal court even though it is the best forum for vindicating their constitutional rights and achieving the system-wide relief necessary for meaningful system change.

Nebraska Appleseed’s CWSAP will continue to fight for the legal rights of these children and work for meaningful reform of this system which continues to fail the children in its care. Given the dismissal of Carson P., we are particularly grateful to have the opportunity to work with practitioners who fight for these children every day in the juvenile courts.

All pleadings not otherwise under seal and the court’s decisions are posted at www.NeAppleseed.org/litigation.

NEBRASKA COURT OPINIONS

In re Interest of Hailey M., 15 Neb. App. 323 (2006). http://court.nol.org/opinions/2007/january/jan16/a06-692.pdf (Decided Jan. 16, 2007). The Nebraska Court of Appeals upheld a juvenile court order denying a biological father visitation while incarcerated and failing to order the Department to consider “any and all relative placements” for the child. On the first issue, the appellant father argued that the trial court erred in overruling his second motion for visitation. The court noted that the denial of the first motion for visitation affected one of the father’s substantial rights. However, the father did not file an appeal from the first order, but subsequently filed a second motion for visitation from which the father appealed. The court found that this appeal was simply an attempt to appeal after the time for appeal (on the first motion) had expired and that, because the second order denying the father visitation was merely a continuation of the original order, the second order did not affect one of the father’s substantial rights and therefore the court lacked jurisdiction to consider the father’s claim that the trial court erred in denying him visitation. On the second issue, upon reviewing the record, the court concluded that the trial court did not err in failing to order the Department to consider “any and all relative placements” for Hailey because the evidence showed that the Department was in the process of considering the father’s sister as a placement for Hailey. Additionally, the Court of Appeals held that the trial court did not err in finding that since the appellant mother had been convicted of felony child abuse resulting in the death of one of the child’s siblings, no reasonable efforts for reunification were required.

NEBRASKA LEGISLATIVE ACTIONS

LB 6 – Provide Nebraska Safe Haven Act. Introduced by Sen. Pahls.

LB 29 – Provide for court orders to direct financially able parents to pay for costs of care for wards of the state. Introduced by Sen. Friend.

LB 38 – Change the number of separate juvenile court judges. Introduced by Sen. Hudkins.

LB 52 – Create a task force to examine the prescription and administration of certain drugs to children who are wards of the state. Introduced by Sen. Howard.

LB 53 – Prohibit smoking in certain foster homes. Introduced by Sen. Howard.

LB 54 – Provide qualifications for certain child protection and safety workers. Introduced by Sen. Howard.

LB 55 – Change provisions governing funding of home visitations, child, and parent programs. Introduced by Sen. Howard.

LB 68 – Create the Office of Guardian ad Litem Services. Introduced by Sen. Hudkins.

LB 71 – Appropriate funds for a child advocacy center. Introduced by Sen. Fischer.

LB 104 – Change age of majority from nineteen to eighteen. Introduced by Sen. Erdman.

LB 112– Provide for the judicial emancipation of minors. Introduced by Sen. Erdman.

LB 157 – Provide for leaving an infant with a firefighter or hospital staff member. Introduced by Sen. Stuthman.

LB 296 – Reorganize the Health and Human Services System. Introduced by Sen. Johnson.

LB 410 – Change child welfare caseload provisions. Introduced by Sen. Howard.

LB 411 – Require standards for training for certain new health and human services employees. Introduced by Sen. Howard.

LB 457 – Change provisions governing court review of foster care placement. Introduced by Sen. Hansen.

LB 461 – Provide rights for foster parents. Introduced by Sen. Dubas.

LB 535 – Create the juvenile legal services division of the Commission on Public Advocacy and eliminate a council. Introduced by Sen. Schmiek.

LB 556 – Change Juvenile Code provisions relating to counsel and guardian ad litem. Introduced by Sen. Ashford.

Note This is not an exhaustive list of legislation or cases. The bills and cases in this update are selected by Appleseed as those raising systemic issues in the child welfare system.

BEHIND THE UPDATE

Sarah Helvey

Sarah Helvey is a Staff Attorney on the Child Welfare System Accountability Project at Nebraska Appleseed and the primary contact person for the Foster Care Reform Legal Resource Center.

Sarah previously practiced at a non-profit public interest law firm she co-founded in Madison, WI, where she provided direct representation to low-income children and families and served as a guardian ad litem and advocate counsel for juveniles. While in Madison, Sarah served on the Board of Directors of the Children & the Law Section of the Wisconsin Bar Association and the Dane County Bar Association Delivery of Legal Services Committee. She is a 2003 recipient of the UW Law School Brown v. Board of Education award for her commitment to social justice and in 2006 was nominated for the Dane County Bar Association Pro Bono Award.

Sarah received her undergraduate degree, magna cum laude, from the University of Nebraska-Lincoln and her master’s degree and law degree, cum laude, from the University of Wisconsin-Madison. During law school, Sarah co-founded the Children’s Justice Project, an organization of law students interested in child advocacy, and served as a Senior Note and Comment Editor for the Wisconsin Women’s Law Journal.

Jennifer Carter

Jennifer Carter is the Program Director for the Child Welfare System Accountability Program (CWSAP) and is also a staff attorney responsible for the Health Care Project. She has worked as a staff attorney at Nebraska Appleseed since her move to Nebraska in the fall of 2003. Jennifer came to Nebraska Appleseed to develop the CWSAP. Her primary responsibility for the project has been serving as lead attorney for Nebraska Appleseed on the Carson P. litigation. She began her legal career in New York as a litigation associate at Cravath, Swaine & Moore and Sidley Austin LLP. Her practice included a broad range of commercial issues including false advertising under the Lanham Act, securities and antitrust class actions, and the international arbitration of a contract dispute. Jennifer also became familiar with the somewhat obscure areas of escheat and unclaimed property law in order to advise corporate clients of their obligations. Jennifer also clerked for the Honorable Lawrence L. Piersol, Chief Judge of the United States District Court for the District of South Dakota where she worked on a host of criminal and civil cases, including a class action lawsuit to reform South Dakota’s juvenile justice system.

Jennifer received her Juris Doctorate magna cum laude from Boston University School of Law and her Bachelor’s degree, cum laude, from Columbia University.

Erica Kiple

Erica Kiple is a law clerk on the Child Welfare System Accountability Project at Nebraska Appleseed. Erica Kiple is currently a third year law student at Drake University Law School in Des Moines, IA. She graduated from University of Nebraska – Lincoln in 2004 with a bachelor’s of journalism degree in News-Editorial. At Drake, she participates in a clinical program where she acts as attorney and guardian ad litem for children involved with juvenile court. She represents children in need of assistance and juveniles charged with delinquent acts. Erica hopes to find an opportunity to continue working in child welfare in Lincoln, NE after graduation.

Emily Tisinger

Emily Tisinger is a volunteer on the Child Welfare System Accountability Project at Nebraska Appleseed. Emily is an undergraduate at the University of Nebraska-Lincoln studying English, Political Science, and Sociology. She is planning to go to law school after graduation and is interested in child advocacy and/or family law.

For more information about the Child Welfare System Accountability Project, please visit: NeAppleseed.org/children
For more information about Nebraska Appleseed, please visit: NeAppleseed.org
To make an online donation and help us make a difference, please visit: NeAppleseed.org/contribute
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