Protecting Foster Children - Judge Refuses to Dismiss Children & Youth Clinic’s Federal Class Action

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This February, the Children & Youth Law Clinic joined with other child advocates to bring a federal suit against the Florida Department of Children & Families for its failure to maintain safe and appropriate living arrangements for foster children in Florida’s Southern Region. On April 17, a district judge denied the DCF’s motion to dismiss the case.  

The class action lawsuit on behalf of the clinic’s clients and other similarly situated children seeks changes in the way the DCF supervises and directs its subcontractors’ use of nearly $100 million per year in funds in Miami-Dade County.

Ongoing Failure to Provide Proper, Adequate Housing

The complaint, filed with Children’s Rights, Inc. and Baker McKenzie, challenges the DCF’s ongoing failure to maintain an adequate number of therapeutic and specialized homes for children with emotional and behavioral disabilities and other special needs. The suit alleges that the department’s lack of placement options results in children and teens being moved between foster homes 10, 20, and sometimes 30 or more times over short periods.

The clinic and its student interns represent many clients with emotional and behavioral disabilities who have experienced Florida’s child welfare system. Their advocacy includes litigation in trial courts and administrative hearings, negotiations, and client counseling on legal rights. Even these extensive efforts are not always enough.

How Things Can Go Wrong in Foster Care

Alexa Poo, a second year student in the clinic, says the public is often not aware of everything that can go wrong in foster care. “The public thinks the system is good, but there are so many faults and not enough people stepping up to the plate to fight for these kids.”

The clinic’s client, and a named plaintiff in the lawsuit, L.T., was moved over 25 times during her four years in foster care. L.T. was first placed in a specialized foster care program for victims of human trafficking but requested to be moved after being sexually assaulted by an adult male in the home. L.T. was then relocated out of Miami to a program for substance abuse treatment where she was stable for months.

Traumatic Pattern of Moving Kids Night-to-Night

Upon her discharge and return to Miami, however, L.T. was housed “night-to-night” because no foster parent would commit to keeping her long-term. She moved through seven placements in two months. She could not attend school or therapy regularly due to lack of a stable home. She relapsed on drugs, ran away, and was re-victimized in the community.

Poo says the lawsuit is necessary because the child welfare system has not invested enough in kids like L.T. “Her case manager refused to answer the phone after 5:00pm because it was after hours, but a kid like L.T. needs someone around the clock. She wants to go to a home, but instead she’s sleeping on a chair in the agency’s office because there is nowhere for her to go.”

DCF Motion to Dismiss Case Denied
The DCF filed a motion to dismiss the suit, arguing that the complaint failed to allege any specific policy that results in the violation of children’s constitutional rights. Judge Robert L. Hinkle dismissed the challenge outright.

“The Secretary [of DCF] cannot escape declaratory and injunction relief under § 1983 for routinely violating the constitutional rights of hundreds of foster children – if that is what occurred – simply on the ground that the Secretary has not precisely articulated a policy requiring that result or that the plaintiffs have failed to discern the precise policy,” he writes in his order.

Limited Power of Child Welfare Courts

Robert Latham, Associate Director of the clinic, says state child welfare courts have no ability to resolve the types of issues raised in the federal complaint.

“State dependency courts can order DCF to remove a specific child from a bad foster placement, but the state court cannot order the Department to expend funds to create a good program. Everyone on a case, no matter how much they care, is frustrated by the same inadequate options for kids.”

How Unstable Placements Cause Harm to Children

This lack of suitable placement options harms kids. The complaint details research that shows placement instability causes severe harm to children, resulting in a broad range of neurological and psychiatric disorders. The complaint alleges that from January 2016 to June 2017, over 800 foster children in Miami-Dade County were relocated six or more times. During the same period, 27 foster children were moved over 80 times each.

The suit also highlights the DCF’s failure to maintain adequate placement options for children under the age of six. The clinic’s two clients, H.G. and M.G., are both under the age of two and placed in a group home setting operated by staff.

Studies have shown that young children raised in institutional settings are at high risk for developing clinical attachment disorders, developmental deficits, and mental health problems.

Since 2013, the Department has placed at least 30 children under the age of six in group homes in the Southern Region. The child H.G. was placed in a group home when only a 4-month-old.

After 1 Year of Research, Clinic Students Continue to Move Forward with Case

The lawsuit seeks injunctive relief requiring the DCF to adequately oversee the care provided by its sub-contractor in Miami-Dade County. The clinic contributed nearly a year of research and investigation to the lawsuit, reviewing thousands of pages of public records and analyzing the anonymized, individual placement history of over 400,000 foster children.

The case now proceeds to discovery. Clinic students will continue to represent their clients in state court while the federal case proceeds.

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