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:

  1. 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.
  2. The “Sibling Subclass” – all class members who have or will have one or more siblings also in DSS custody.
  3. 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

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:

  1. A drastic shortage of foster homes that often leads to highly inappropriate or even unsafe placements in institutionalized settings and/or abusive homes
  2. Excessive caseworker caseloads and an unstable workforce that can’t provide minimally adequate basic monitoring services
  3. 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.

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Would You Serve Where You Were Hated?

by KevinH on November 11, 2014

One of the most complicated aspects of the U.S’s foreign policy in the ‘50s and ‘60s had to do with its uber enemy of the time – the dreaded U.S.S.R., now Russia. As it came to be known, the “Cold War” was an arms race unmatched in history. Both sides researched, drafted, rocketed, test-piloted, and developed some of the most dangerous weapons in history. As we now know, this was largely being done by both sides out of fear and not on actual reconnaissance or data collected on what the other side was doing.

 

Out of the mysterious desert of Nevada came one of the U.S.’s most effective assets of the Cold War. The U-2 spy plane was developed at the military’s top secret test facility at Area 51 and was quite the technological terror of its day. It could fly up to an altitude of 70,000 feet, that’s over 13 miles for those of you counting at home. It was so fast, and would fly so high, that test pilots would leave Area 51 heading east and would be in Kansas before they knew it. They would bank left over Nebraska and then back through Colorado and south through New Mexico before heading back to Area 51.

 

So why did it need to fly so high? Well, a couple of reasons. First, the U-2s were being sent straight to an airstrip in Pakistan that was being used by the United States to fly planes over the Soviet Union for spying. Those pesky Soviet anti-aircraft missiles could go way up in the air…but not quite 70,000 feet. Second, the Soviet prime minister at the time, Nikita Khrushchev, had this paranoid delusion that the United States was spying on his country with spy planes. Crazy! So he picked up the phone and contacted President Dwight Eisenhower and asked him, man to man, if the United States was flying spy planes over the Soviet Union. President Eisenhower, of course being one of the greatest presidents we’ve had, answered him directly…“absolutely not.”

 

That conversation was in late April 1960. Why is that date important? Well, a U-2 pilot by the name of Francis Gary Powers took off from the little Pakistan air strip a couple weeks later on May 1, 1960 and was shot down over the Soviet Union…along with his camera…and the photos he took of those Soviet things called missile silos, airfields, etc.…and his obvious Americanness…and his ultra cool spy plane that had been driving the Soviets crazy for quite some time. Oops.

 

Mr. Khrushchev was, um, shall we say, not happy.

 

So you are Francis Gary Powers. You’ve just been shot down in the absolute worst place in the world an American could be shot down, and at the absolute worst time in history an American could be shot down there. Rescue? Negative Ghostrider, not happenin’. All U-2 pilots were equipped with uniforms that had no insignia so that they could tell their captors the “official cover story”…that they were simply weather pilots checking on atmospheric conditions. The planes were equally devoid of insignia to help with the subterfuge. Also this of course made the pilots 100% expendable to the United States. The U-2 pilots knew that if they were ever shot down they were as good as dead. As for Powers, once the Soviets developed his photographs it would become clear right quick that those military sites in the photos were not white fluffy clouds.

 

Its hard to imagine the fear that Powers must have felt isn’t it? You are not only a foreigner in a foreign land, you are hated. You are vile. You are the enemy. And your president had just flat out lied to the leader of the Soviet Union. And worst of all, you are a spy.

 

…………………..

 

Flash forward to 2014, and pick just about any year in between. Our men and women in the military have one essential mission – to protect our country and our freedom. And they do it day in and day out, 24/7. They do it on our home soil and on foreign soil. They do it in the most peaceful of places and in the most hostile of places. They do it in places where Americans are loved and they do it in places where Americans are hated. They do it without fail. They do it relentlessly. They do it for love of country and because their country asks them to.

 

So when you see some military folk on Tuesday be sure to thank them for their service to our country. We wouldn’t be here without the countless numbers that have served and died for our freedom.

 

…………………..

 

P.S.

What happened to Francis Gary Powers you ask? Well, those dang Russkies tried him and convicted him of espionage because he was a darn good American (I added the good American part). He spent over a year in prison in Russia and then the United States got him back via a spy trade. He lived in America the rest of his days…and had some damn good photos to share.

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A Possible Conversation About Ray Rice

September 10, 2014

Do you know her name? Of course I know her name, its…ugh, I forgot. She’s his wife. He hit her. I heard she was lunging at him. She was, but he hit her first. Well, if she’s lunging… A lunge excuses hitting a woman? Hmmm, well when you put it that way. Were they arguing? […]

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A Word About Eddie Christian

May 7, 2014

Every year the Sebastian County Bar Association holds a memorial service for lawyers that have passed away in the previous year.  That service is coming up in the next couple of weeks.  A mentor and friend of mine is going to be honored that day – and I want to say a few words about […]

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Don’t Forget Your Digital Property in Your Divorce Settlement

October 1, 2013

An interesting article from attorney Deborah G. Matthews caught my eye and left me with a stark conclusion: When it comes to dividing your marital assets in your divorce settlement negotiations, don’t neglect your digital property. Ms. Matthews’ article isn’t specifically about property division, but it applies: It is a new world out there. Looking […]

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Alaska Anyone? (Part I)

September 26, 2013

For years I have heard from people about the lures of Alaska.  From those that have taken cruises there.  From those that have travelled there to fish.  From those that have travelled there to view the landscapes and the wildlife.  As far as I can recall, I cannot remember anyone telling me that they had […]

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What’s Venue, and Why Should You Care?

September 26, 2013

In any litigation, including divorce cases, one of the first decisions that must be made is where to file the case. Even when both parties reside in the same state, different courts might have the legal authority to hear the case – which one is appropriate in your case? This is called venue and usually it’s […]

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Woods v. Woods, 2013 Ark. App. 448: Custody and Alimony

September 6, 2013

The Arkansas Court of Appeals issued its ruling in the case of Woods v. Woods on August 28, 2013. It’s an interesting case as it illustrates the way the Court of Appeals reviews factual determinations by the Circuit Courts in divorce and custody cases. In Woods, the mother appealed a grant of custody to the father and […]

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Mom In Trouble Over Goat’s Milk

August 23, 2013

This appears to be a hot month for overreaching CPS stories. This one comes from Maine, and it’s certainly a troubling account, if true: When the baby didn’t take to breastfeeding, Gellerson started feeding him homemade goat milk formula. “Oh, he loved it,” Gellerson said. “We put celery juice in it, and he just loves that, […]

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Reason: More Transparency Needed for CPS Agencies

August 22, 2013

A recent article on the Reason website calls for more transparency in CPS actions, especially in removal cases. Reason is a libertarian magazine that’s published monthly. The piece in question appears on the Reason website here. The article looks again at the Nikolayev case, about which I wrote here earlier this year, in which California CPS workers removed an infant […]

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