January 28, 2011

Venable and Public Justice Center Prevail in Three-Decade Long Baltimore City Foster Care Class Action

4 min

Federal appeals ruling ends a case going back to 1984 alleging negligent treatment of 6,000 children; Will force state to enact comprehensive reforms to Baltimore’s troubled foster care system

BALTIMORE, MD, January 28, 2011  –  The United States Court of Appeals for the Fourth Circuit has rejected an attempt to overturn a federal court ruling that had required comprehensive reforms of the Baltimore City foster care system.

In a unanimous ruling in the 26-year-old L.J. v. Wilbon case, the Fourth Circuit held Wednesday that the federal court in Baltimore could enter a comprehensive new decree that attorneys representing a class of nearly 5,000 abused and neglected children had negotiated with the Maryland Department of Human Resources and the Baltimore City Department of Social Services to reform the long-troubled Baltimore foster care system and replace a 1988 decree that had failed to compel the needed reforms.

The defendants in the case, both state agencies, had argued that, under a Supreme Court decision issued in 2009, foster children had no rights to enforce federal child welfare laws and that the federal court could not enforce orders it had entered based on earlier decisions.  This is the first ruling by any appellate court on the issue.

The Fourth Circuit decision, authored by Circuit Judge Allyson K. Duncan, held that the State was misinterpreting the Supreme Court precedent, and that a 1988 decision by the Fourth Circuit that the foster children could enforce the child welfare laws was still controlling.  It affirmed the “well-reasoned” decision of U.S. District Court Judge J. Frederick Motz, who had denied the defendants’ attempt to escape federal jurisdiction and who entered the new decree over the defendants’ objections.  Judge Motz had praised the new decree as “highly commendable.”

“This is a watershed decision,” said Mitchell Y. Mirviss, a Venable LLP partner who argued the case on behalf of the foster children.  “Maybe now the State will focus its resources on providing all of the services required by federal law.”  Mirviss added, “We can’t afford to lose another generation of foster children to institutional indifference and neglect.”

Rhonda Lipkin, an attorney at the Public Justice Center in Baltimore, who is co-counsel with Mirviss, explained that this ruling means that the defendants will have to implement all of the court-ordered reforms.  “These requirements are absolutely critical to the health, safety, and development of the children,” Lipkin said.  She pointed out that the new decree had been widely praised by child welfare experts and follows models used in several other states that have successfully reformed their foster care systems.  “In light of the decisions, we have real hope that the system will be fixed,” she added.  The decree requires defendants to ensure that:

  • Foster children receive needed health care, mental health services, and dental care.
  • Foster children are promptly enrolled in school and can stay in their home schools even when they move from home to home.
  • Caseworkers are trained and carry caseloads that meet professional standards and state law.
  • Families receive all needed services to prevent unnecessary removal of children from their care or to ensure prompt and timely reunification.
  • Foster children get to visit their parents on a weekly basis.
  • Caseworkers visit foster children in their placements every month.
  • Children under age 13 are not placed in group homes unless medically needed.
  • Siblings who are separated in foster care can visit each other regularly.
  • Parental rights are terminated promptly when reunification with families is not appropriate or possible.

The State must comply with 28 separate outcomes for the foster children, which are measured by over 100 performance measures.  All compliance efforts will have to be verified by Dr. Mark Testa, a professor at the University of North Carolina School of Social Work and a nationally recognized expert on child welfare statistics and reform efforts.

The Baltimore foster care system has had chronic failures documented by numerous reports and studies, including performance audits by the Maryland Department of Legislative Services.  Nevertheless, as the Fourth Circuit decision recounts, the defendants had been reporting compliance based on erroneous data.  In 2005, it was discovered that foster children were forced to sleep on the floor of an office building without bedding, clean clothes, or showers.  In November 2007, attorneys for the foster children filed a 400-page contempt petition to compel compliance, which led to the new decree.

“Although significant improvements have been made, there is still a long way to go until compliance, said Mirviss.  “We look forward to the day when the foster children are receiving what they need and when defendants can honestly tell the court that they have resolved the problems at last.”


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