Hoosier foster kids file class action suit in Evansville's U.S. District Court against DCS

EVANSVILLE, Ind. — Nine children in Indiana's foster care system filed a class action lawsuit Tuesday in Evansville's U.S. District Court seeking to stop "the ongoing violations of children’s constitutional rights and rights under federal law, transform the state’s child welfare system, and ensure DCS fulfills its legal responsibility for vulnerable foster children in Indiana’s child welfare system," according to the attorneys filing the suit.

The children — aged 3 to 16 from Marion, Allen, Spencer and Wells counties — in the filed complaint said the lawsuit was being brought as a civil rights action on behalf of all children currently or who will be in the custody of DCS.

"For each named plaintiff, DCS has failed to provide safe and appropriate foster care placements; failed to provide appropriate services to the children and their families to allow safe reunification; and, for those for whom safe family reunification is not possible, failed to timely pursue termination of parental rights legal proceedings and failed to seek and secure safe, permanent homes," the complaint alleges. "In doing so, Defendants have violated Plaintiffs’ federal constitutional and statutory rights."

The suit was filed by Indianapolis-based Indiana Disability Rights, New York-based A Better Childhood and New York-based Kirkland & Ellis. 

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DCS deputy director of communications Noelle Russell declined to comment saying, "We do not have comment on the pending litigation at this time. DCS has not yet received notification of the lawsuit, and our legal team would need to review the information."

The suit also names Gov. Eric Holcomb and DCS director Terry Stigdon.

The complaint alleges that Indiana removes children from their homes to be placed into foster care at a "staggering rate — more than double the national rate" and then fails to keep them safe while in DCS custody "often placing them in inappropriate, unstable or overly restrictive placements; fails to provide necessary support services and medical and mental health care; and fails to provide meaningful case management."

The shortcomings of the state's foster care system, the complaint alleges, are well known by state officials. An analysis of the Child Welfare Consulting Group showed the state’s systemic and continued failure to correct these issues leaves children in serious and unconstitutional danger, the complaint alleges.

"Although the state has made some changes to the foster care system since the issuance of the CWG report, the changes are minimal, and the basic problems continue," according to the complaint. "The agency appears to be focused more on statistics than outcomes, by allegedly not investigating cases or closing cases that are not yet ripe for closing and without providing necessary services to children."

In a release from the attorneys representing the children, they illustrated some of the living situations of the children in the class action. 

• Ashley W. and Betty W., 3 and 4, were removed from their mother's care due to her substance abuse and went through 16 and 17 different foster homes over 2 1/2 years, respectively. After two years in care, DCS finally changed the girls’ permanency goal to adoption but then failed to meet statutory deadlines for terminating parental rights, so a judge dismissed the DCS petition and the girls are now split up and residing in separate non-kinship foster homes.
• Logan S. is a 12-year-old boy who entered the foster care system over a decade ago when he was two years old and has cycled through at least 15 placements, including failed pre-adoptive placements, emergency shelters and residential facilities. It took DCS five years to free Logan for adoption, and he now lives in a locked facility in northern Indiana. He longs for a family who will love him.
• Sara O. is a 14-year-old girl who entered foster care at 7 due to sexual abuse by her father. After several years in foster care, DCS returned Sara to her father, who again sexually abused her. After calling 911, Sara reentered foster care. DCS has placed Sara in at least 17 different placements, including a state psychiatric hospital, where she lived for three years. Sara currently lives in a private secure facility in northern Indiana.
• Milo S. and Thomas M. are three- and five-year-old brothers who've been in foster care most of their lives. Thomas was removed from his mother’s care at 1 years old due to domestic violence and her use of methamphetamine. DCS later placed him back home for a trial visit but failed to monitor the family, and his mother started using meth again. DCS removed Thomas and discovered then three-month-old Milo with severe scabies all over his body. Six Family Care Managers (FCMs) and four DCS attorneys have been assigned to the boys’ case, with two FCMs terminated due to inappropriate behavior. Parental rights were terminated, but the Court of Appeals reversed the order due to DCS’s severe mishandling of the case.

The complaint alleges that Holcomb, Stigdon and DCS have been aware of the ongoing issues and failings of the department through a number of audits and reports and the public resignation of former DCS Director Mary Beth Bonaventura who warned in her resignation to the Governor that Indiana officials were systematically placing Hoosier children at risk “in ways that all but ensure children will die.”

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Systemic issues alleged in the 81-page suit alleged include:

• The state is failing to provide children in its care with stable, nurturing, family-like homes — a lack of foster homes mean children are placed based on what home is available rather than what home is suitable.
• Frequent moves among homes and institutions increase trauma for children already removed from their family homes and often separated from their siblings, their school and their community. 
• DCS is unable to meet the needs of the thousands of foster children with disabilities whose involvement in the child welfare system places them at a greater risk of institutionalization. 
• The child welfare system relies heavily on institutionalization, even for children with relatively minor behavioral problems.
• The system is not set up to provide children the necessary services and treatment they need. Foster children’s medical, mental health, and physical needs remain unmet due to irregular, infrequent assessments and a lack of sufficient and available resources.
• Overworked caseworkers struggle to make important but difficult decisions about the right services to provide. They face having too many children to serve, too few resources, and too little training. 

The complaint alleges the nine children have suffered serious physical and psychological harm under DCS care.

“We have been deeply troubled the more we have studied the Indiana child welfare system,” A Better Childhood Executive Director Marcia Robinson Lowry said in the release. "There have been years of expert reports, years of promised reforms, and minimal and intermittent movement forward, but the fundamental problems in this system do not change. Children are being very badly harmed by the lack of appropriate placements, by the erratic practices, and by the lack of a fundamental focus on the well-being of children. The way that Indiana is treating these vulnerable children is both unconstitutional and inhumane.”

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Melissa Keyes, legal director of Indiana Disability Rights, said children coming into the care of DCS have already experienced trauma. 

"The failure of DCS to protect these kids from further harm is unconscionable, especially when much of that harm is due to DCS’s own failings," she said. “That children with disabilities are being kept in overly restrictive institutional settings, that they are not being provided with adequate community-based services has certainly contributed to the developmental trauma these kids are experiencing.” 

Kirkland & Ellis partner Aaron Marks said the failure to protect these vulnerable children by DCS is "completely unacceptable."

“This violation of constitutional rights is causing lasting harm to both the children and their communities," he said. "We are hopeful that our efforts will transform this broken system, and ensure the protection and welfare of Hoosier children.”

The groups said they were responding to requests from local advocates to investigate the state's child welfare system and conducted extensive research and interviews with a number of people involved with many aspects of the state's foster care system over the last year. In the release, the groups said they "consistently identified failings pointing to the need for a lawsuit to force reform of DCS and protect children in its care.

The suit is asking the court permanently prohibit DCS from subjecting the children in the suit to further harm and from threatening their safety and well-being through practices that violate their rights. The court is being asked to order appropriate remedial relief to ensure that defendants comply with the law and provide children with legally mandated services.

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