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Foster children's lawsuit against Dept of Child Services to move forward

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Posted at 9:50 PM, May 14, 2020
and last updated 2020-05-14 21:50:22-04

INDIANAPOLIS — A federal judge upheld several legal claims this week raised by 10 foster children who have sued the Indiana Department of Child Services and state leaders claiming the state violated their rights by failing to protect them from harm when placing them in foster care.

Federal District Court Judge Richard L. Young’s decision allows the case to move forward toward trial.

As RTV6 reported in June 2019, a group of children filed a class action lawsuit against Gov. Eric Holcomb, the Indiana Department of Child Services and its director Terry Stigdon alleging Indiana is failing in its duty to protect more than 22,000 children in the state’s child welfare system.

The children are represented by Indiana Disability Rights, by A Better Childhood, and by the law firm of Kirkland & Ellis LLP.

“This is a great victory for the children of Indiana,” Marcia Robinson Lowry, the attorney for A Better Childhood, said. “We can now proceed to develop the facts and prove to the court that it should bring an end to the unconstitutional harm that has been inflicted on so many Indiana children. These children are all entitled to a better childhood.”

The names of the children are not identified in the lawsuit.

“As the Court succinctly stated, the ADA requires the Dept. of Child Services to make reasonable accommodations or modifications to avoid discrimination of children with disabilities in the foster care system. This decision is a great step in the right direction to allow plaintiffs to show how DCS has systemically failed to make such modifications, which in turn has led to unnecessary or prolonged institutionalization of children in the care of DCS,” Nikki Gray, the attorney for Indiana Disability Rights, said.

The state had argued that the case should be dismissed altogether because a federal court purportedly lacks jurisdiction and because the plaintiffs’ complaint had allegedly failed to state legal claims, according to Indiana Disability Rights.

READ | DCS director full statement on class action lawsuit

The director of the Indiana Department of Child Services called a class action lawsuit “puzzling” and “misleading” in a statement issued in June 2019.

“The timing of this filing is puzzling, considering the significant strides our agency has made since we publicly took responsibility for our shortcomings one year ago. I want Hoosiers to know I take the concerns of all the children and families we serve very seriously,” said Stigdon last year. “It is easy to cherry-pick our most challenging cases to support a narrative suggesting this is every child’s experience, when in reality, the average number of homes a foster child lives in while in DCS care is 2.”

More than 14,300 Indiana children are currently receiving care outside of the home, including with foster families.

The lawsuit alleges Indiana consistently fails to protect children by:

  • placing them in inappropriate, unstable, or overly restrictive settings
  • failing to provide necessary support services and medical care
  • failing to provide meaningful case management resulting in delayed or no services and little oversight of a child
  • allowing children to languish in foster care for years before they are reunified with their primary caretakers, adopted, or age out of the system

In December 2017, then DCS director Mary Beth Bonaventura resigned to Holcomb, warning that Indiana officials were placing children at risk “in ways that all but ensure children will die.”

PREVIOUS | Outgoing DCS director writes scathing letter to Governor

A 2018 audit from the Child Welfare Consulting Group criticized the agency’s disorganization.

DCS has touted changes it has made since the 2018 audit, including a 17 percent decrease in total cases since January 2018 and a 14 percent decrease in out-of-home placements.

The lawsuit alleges DCS appears to focus more on improving its statistics, by failing to properly investigate allegations or sending children home too quickly and without necessary services.

The plaintiffs hope to prompt Indiana to transform its foster care system, including by making sure DCS has enough properly trained caseworkers to meet the needs of foster children.

Indiana has the second highest rate of reported child abuse in the nation at 18.6 victims per 1,000 which is over twice the national average (9.1 victims per 1,000), according to a federal Child Maltreatment report from the Children’s Bureau of the U.S. Department of Health and Human Services.