According to a recently-filed class action lawsuit, South Carolina’s foster care system has a lot to answer for — and the complaint, filed on behalf of eleven named plaintiffs, all children in the SC foster care system, specifically wants SC Governor Nikki Haley and Susan Alford, the Acting State Director of SC’s Department of Social Services, to do the answering.
The lawsuit has made headlines in some major news outlets, including the New York Times and TIME magazine’s website. Recently, Susan Berkowitz, the Executive Director of SC’s Appleseed Legal Justice Center, the organization that is assisting in representing the named plaintiffs, shared with me the complaint her organization filed in the Charleston Division of SC’s federal district court and her thoughts about the litigation, as well as the embattled state foster care system itself. (NB: The link in the preceding sentence will cause the 77-page PDF file to open in a new tab or window.)
“As wards of the State, Plaintiff children are wholly dependent on the State, and in particular on DSS, for their safety, well-being and required services… DSS is re-victimizing the very children it is charged to protect.”
~ Complaint, Michelle H. v. Haley, p. 1, paras. 5 & 6.
The Action and Its Parties
The class action is styled Michelle H. et al v. Nikki Haley and Susan Alford, is dated January 12, 2015, and was filed in the Charleston Division of the District Court for South Carolina. The case caption names eleven minor children as plaintiffs, along with their “next friends,” individually and on behalf of all other similarly situated children.
The eleven named plaintiffs and their stories, as recounted in the complaint, paint compelling pictures of the need for serious reform:
- Michelle H., 16 years old – Michelle entered foster care at the age of 8 with severe hearing loss in one ear. Despite this, Michelle has not received adequate medical treatment and has been frequently moved through a series of restrictive group care facilities and abusive foster homes. Currently Michelle is one such facility, due to the lack of suitable foster homes, and is placed
- Ava R., 15 years old – like Michelle, Ava is also placed in a restrictive and unsanitary facility. Despite knowing that Ava needed psychiatric care, she did not receive a single therapy session until ten months after she was placed into the system. She has also been targeted for inappropriate sexual attention by a maintenance worker at her facility; despite Ava’s complaints, this individual apparently is still employed at the facility.
- Zahara L., 9 years old – one of the most troubling stories attributed in the complaint is that of Zahara who, at five years of age, entered the system and was initially placed in a high-security institution designed for children with severe mental health needs. While at this facility, Zahara was prescribed powerful psychotropic medications. She’s been moved a total of thirteen times in the four years since, and has been assigned a rotating series of at least six caseworkers. (The complaint also mentions that high staff turnover is one of the major contributing factors to the SC system’s many deficiencies, leading in some cases to a lack of even the most basic safety monitoring.)
- Sammy V., 13 years old – Entering the system at the age of 12, Sammy has been placed into a detention center with the functional equivalent of solitary confinement and only telephone access to a caseworker on at least two occasions, all because DSS had no appropriate placement for him. He was subjected to verbal and physical abuse at one such facility at the hands of staff members.
- Andrew R., 16 years old – After entering the system at the age of 14, Andrew has been subject to a series of inappropriate placement facilities hours away from his biological family. Despite a goal to reunify with his family, he has only seen his mother once since entering care. Like Zahara, Andrew was also very quickly prescribed powerful psychotropic medications without ever receiving a mental health assessment.
- Kyle S., 17 years old – the plaintiff closest to “aging out” altogether of foster care, Kyle has suffered abuse at the hands of at least one foster parent and was moved an astonishing 28 times since he entered the SC foster care system at the tender age of three.
- Siblings Marcus B. (10), Annie B. (8), Cameron (5), Sara (3) and Roger (2) – the siblings entered the system late in 2014 but were immediately separated and put in different homes across South Carolina, due to what the complaint describes as an extreme shortage of suitable facilities and foster homes. Some of the siblings have been assaulted since entering the system.
The named plaintiffs, according to the complaint, seek to represent one large class, and three sub-classes. The larger group class is defined as “all children who are or will be involuntarily placed in foster care in the legal custody of DSS as a result of emergency protective custody (EPC) and/or a referral, report, suspicion, allegation and/or adjudication of abuse or neglect.” The three subclasses include:
- The “Disability Subclass” – all class members whom DSS has identified or will identify as eligible for Intensive Foster Care and Clinical Services, which is defined as children “who have emotional/behavioral psychiatric needs” serious and intense enough to require specialized outplacement.
- The “Sibling Subclass” – all class members who have or will have one or more siblings also in DSS custody.
- The “Juvenile Justice Subclass” – all class members taken into custody by the Department of Juvenile Justice.
The class is estimated to include 3,372 children under the age of 18 who are currently in the custody of DSS in the foster care system.
Representing the named plaintiffs are Susan Berkowitz and Stephen Suggs, both attorneys from the South Carolina Appleseed Legal Justice Center and a private attorney, Matthew T. Richardson, from the Wyche, P.A. law firm in Columbia, South Carolina. Additionally, two attorneys from the New York-based Children’s Rights organization, Ira Lustbader and Kathryn A. Wood, will be seeking admission pro hac vice on behalf of the plaintiffs.
The two named defendants are sued in their official capacities only.
The complaint is intricately structured – its table of contents alone runs two full pages – and is presented as a civil rights action under 42 U.S.C. § 1983. It sets forth several factual allegations in support of claims that the defendants violated the plaintiffs’ civil rights.
The claims break down into three general categories of “failures” of the South Carolina foster care system to care for and protect the children in its care and legal custody:
- A drastic shortage of foster homes that often leads to highly inappropriate or even unsafe placements in institutionalized settings and/or abusive homes
- Excessive caseworker caseloads and an unstable workforce that can’t provide minimally adequate basic monitoring services
- Failure to provide basic healthcare services, from assessments and screenings to treatment
The legal causes of action rest mainly on alleged violations of substantive due process rights pursuant to the Fourteenth Amendment of the U.S. Constitution. Other claims rest on alleged violations of Title II of the Americans with Disabilities Act and the Federal Medicaid Act.
The False Dichotomy
When speaking with individuals – lawyers and non-lawyers alike – about the dangers of false allegations of child abuse, I am often struck by what appears to me to be a misperception. Many people seem to believe that either the problem with Child Protective Services agencies (such as South Carolina’s DSS) is an over-eagerness to press false accusations of child abuse, or the problem with CPS agencies is that it does not press child abuse cases strenuously enough.
In my view, this is a classic false dichotomy.
In other words, it’s not an “either/or” kind of situation. Both premises can be true simultaneously – and I believe they are in many cases equally true. The Michelle H. complaint, together with the impressively researched factual, legal, and academic support contained therein, shows us why.
The serious, pervasive, long-standing problems recited in the complaint can all be traced in part to a failure of resources. Too many cases, not enough training, and not enough resources of all kinds (financial and otherwise), all combine to create a chaotic system that puts both children and their families at risk. The parents and caregivers are at risk of being accused, wrongly, of abuse – their children are then at risk of further victimization at the hands of an overburdened foster care system. This then diverts scant resources away from monitoring and identifying actual cases of abuse, leading to tragic headlines and the loss of innocent life. And the cycle continues.
This is not unique to South Carolina – although South Carolina, as of 2012, had the nation’s highest incident rate of institutionalizing its foster children aged 12 and younger (approximately 20%). Although each state has its own procedures, agencies, and policies, the risks illustrated in the Michelle H. litigation can and may be present in any state. I’ve reported many such instances via Twitter and my Facebook page.