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While following up on a tip in Newark, N.J., last January, police officers found two brothers cowering in the basement of their foster home. The boys were malnourished, lice ridden, scarred with cigarette burns-but alive. Their brother, also a foster child, was not. In a second search of the basement, the police found the boy’s body crammed into a plastic storage container. An autopsy determined that the undernourished boy had died of a blow to the stomach. The death of Faheem Williams, 7, ignited a scandal. It was revealed that no case worker from the New Jersey Division of Youth and Family Services (DYFS) had investigated complaints that the three brothers were kept in deplorable conditions. In the light of the Williams case, the state agreed to end four years of fighting a class action alleging that its foster care system was so mismanaged and understaffed that it put children in jeopardy. The settlement requires the state to increase funding of the division by $22 million a year and accept oversight of its foster care system by a panel of experts. Charlie and Nadine H. v. McGreevey, No. 99-Civ.-3678 (D.N.J.). The law firm factor In a familiar pattern, the suit was prosecuted by a law firm donating its time. The firm, Lowenstein Sandler of Roseland, N.J., was representing a private child-advocacy organization, New York-based Children’s Rights Inc. Law firms have teamed up with Children’s Rights with the aim of reforming troubled foster care, child protection and child welfare systems in states across the nation. Children’s Rights, with a staff that includes six attorneys, has litigated class actions in 13 jurisdictions since 1973. It’s involved in court oversight of settled suits or current litigation in Tennessee, New Jersey, Missouri, New Mexico, Connecticut, New York, Kansas, Pennsylvania, Kentucky, Wisconsin and the District of Columbia. It’s in the early stages of litigation in Florida and Georgia. The specific actions in each state vary. Every class action seeks to lower the number of children assigned to each case worker and to improve management of the foster care or child protection system, according to Marcia Robinson Lowry, executive director of Children’s Rights. Lowry noted that “pro bono attorneys become deeply involved. They take the cases because they feel a pro bono obligation but they get really pissed at what is going on.” Pro bono firms-in addition to providing attorneys who are members of the bar in the state being sued-are crucial to bearing the costs of discovery and trial preparation, Lowry said. During the New Jersey litigation, Lowenstein Sandler spent $143,000. Firms that work pro bono with Children’s Rights commit to grueling and expensive cases that require lengthy discovery, plenty of expert testimony and countless depositions, according to lawyers involved in the work. Litigation invariably lasts for years-sometimes decades. New Jersey was no exception. The state defended the class action vigorously, ultimately spending $1.3 million on outside defense counsel Wolf, Block, Schorr and Solis-Cohen of Philadelphia. “We knew when we agreed to work with Children’s Rights that we were making an open-ended commitment,” said Doug Eakley of Lowenstein Sandler, co-counsel in the New Jersey litigation. “The firm has a very strong commitment to community service and pro bono work. We believed this issue to be very important.” Lowenstein Sandler devoted roughly 7,000 hours of staff time over four years. The settlement awarded the firm $1 million in fees, payable by the state, but Lowenstein Sandler negotiated a deal to waive payment in exchange for the state committing an equal amount to hiring new DYFS staff. In the end, Governor James McGreevey praised the settlement reached in June as “a major step forward for children and families in New Jersey.” Joe Delmar, a spokesman for the state, said it welcomes the settlement as a needed engine for reform. “We played a major part drafting the settlement and believe it is important to transforming DYFS,” he said. Georgia’s problem In Georgia, a clash over funding for foster care services in Atlanta has sparked a legal war. “Democracy is a great way to govern but it doesn’t do much for people who can’t vote or hire a lobbyist,” said Jeffrey O. Bramlett of Atlanta’s Bondurant Mixson & Elmore. “When the Legislature gets to the end of the session and makes the hard choices about where to spend the money, these kids get the short end of the stick year after year after year.” Bramlett, with the encouragement of his nine partners, is working full-time on a 2002 class action alleging that foster care and child protective services in Atlanta are both legally and constitutionally deficient. Kenny A. v. Perdue, No. 1: 02-CV-1686-MHS (N.D. Ga.). Bramlett said the suit seeks to compel the state to hire more caseworkers in Atlanta and to change managerial practices. One no-cost reform sought, he said, is keeping up-to-date lists of available foster care slots in suburban homes that Atlanta caseworkers can use when city foster homes have no room. Georgia is fighting the suit, arguing that before the litigation was filed it had already begun implementing reforms aimed at curing the deficiencies alleged by Children’s Rights, said Mark Cohen of Atlanta’s Troutman Sanders, who is representing the state. “The claims that the plaintiffs have made don’t have a legal basis,” Cohen said. “Children’s Rights cannot show that Georgia has been deliberately indifferent to the needs of the children in foster care. The state contends it can implement and administer their own improvements to the foster care system without having Children’s Rights dictate their own choices.” The forever case The New Jersey litigation was swift compared with what happened in Missouri. Lori Burns-Bucklew of Kansas City, Mo.’s Shook, Hardy & Bacon has been assigned to the Gary Stangler case since she joined the firm in 1990. The case was filed in 1977-years before Burns-Bucklew was even in law school-after allegations that haphazard state oversight failed to detect abuse and neglect in foster homes. G.L. v. Gary Stangler, No. 77-0242-CV-W-1 (W.D. Mo.). Burns-Bucklew said the case remains unsettled. However, it has taken the highly publicized death of a child in foster care in August 2002 to bring the two sides to the verge of ending the case. The child, Dominic James, 2, spent two months living with six other foster children in a Willard, Mo., home. The child allegedly died of “shaken-baby syndrome.” “The case seems intractable but I think we are not too far from getting it finished,” she said. In the aftermath of the child’s death in 2002, Missouri Governor Bob Holden ordered an investigation of the state Department of Social Services that ultimately cost top administrators their jobs. In December 2002, Holden issued an executive order establishing an ombudsman to investigate complaints about foster care and to monitor the delivery of children’s services within the Department of Social Services. Class actions a key Judy Meltzer of the Center for the Study of Social Policy in Washington, a long-time observer of U.S. foster care systems, said that they “are very, very hard to reform.” When advocates for foster children file suit, they are often seeking reform that administrators within the system have sought but failed to achieve, Meltzer said. Nonetheless, states almost invariably mount a vigorous defense. “The natural inclination of people to close ranks when criticized sets up an adversarial process, even when the people running the system might believe privately that there needs to be change,” Meltzer said. “State systems are typically very reluctant to enter into these settlements because they don’t believe they can live up to the expectations.” But class actions are a key strategy in forcing states to improve their foster care systems, she said. “Class action litigation has become important to get policy-makers to make changes that administrators generally know have to be made, that they want to make, but that they lack the ability to make,” Meltzer said. Meltzer also noted that in several states, class actions that have been grinding along for years get jolted back to life when the death of a child occurs. Case in point: New York City, where the city and state have control over protective and foster care services. Children’s Rights, frustrated by years of efforts to reform what it called “one of the most expensive and dysfunctional” child welfare bureaucracies in the nation, filed a class action in December 1995 on behalf of 100,000 children in programs run by the New York State Office of Children and Family Services and New York City’s Administration for Children’s Services. Children’s Rights was joined in the case by Lawyers for Children, another nonprofit advocacy group, and two firms working pro bono, Cahill Gordon & Reindel and Schulte Roth & Zabel, both of New York. The suit was filed after a 5-year-old girl, identified by her first name, Marisol, was found by a city housing inspector in 1995 locked in a filthy closet. Marisol v. Pataki, No. 95-Civ-10533 (S.D.N.Y.). The litigation-and pressure to reform the system-gained momentum with the highly publicized death of Elisa Izquierdo, 6, who was killed by her mother after child protective case workers declined to remove the child from her home in November 1995. The Marisol case was settled in 1999 with an agreement to establish an oversight panel to guide reforms. William Bell, commissioner of the New York City Administration for Children’s Services, in a written statement said reform efforts “benefit tremendously from the additional public accountability that an advisory panel provides.” In March 2002, after the term of the oversight panel created in the Marisol settlement had expired, Bell established an ongoing advisory panel to continue outside oversight. Marisol was the model for the New Jersey settlement, Lowry said. In a recent report, Children’s Rights found that, since the settlement, the New York City Administration for Children’s Services, working with an expert advisory panel, has lowered caseloads, increased staff training and improved data management. Lowry said the system is vastly better but, noting the recent death of a gravely disabled foster child found discarded in a trash bag, far from perfect. “The New York City system is certainly much improved since the Marisol settlement but even in a system that is functioning better then it was, there will be mistakes made,” Lowry said. “The goal is to make certain the mistakes are rare and not systemic.” The New York agency said it is not permitted to comment on the case while it is under investigation. Page’s e-mail address is [email protected].

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