STATE ACKNOWLEDGES NONCOMPLIANCE WITH COURT ORDERS IN LONG-STANDING FOSTER-CARE LAWSUIT
Governor agrees to hire new Executive Director of the Department of Family and Children’s Services, which will become a cabinet-level position, and a consulting group to recommend the changes necessary to protect Mississippi children.
Olivia Y. v. Bryant, Case No. 3:04-CV-251-LN, U.S. District Court, Southern District of Mississippi, Jackson Division
Facing an evidentiary hearing for contempt scheduled to begin in federal court on August 10, the state has conceded that it did not meet court-ordered requirements in the 7-year-old lawsuit Olivia Y. v. Bryant intended to reform the state’s foster-care system.
In an Agreed Order signed by U.S. District Judge Tom Lee on July 23, 2015, the state agreed with factual charges made against it in reports submitted by the court-appointed monitor. In the Order, the parties also agreed on steps that will determine whether the plaintiffs will continue to seek a receivership, this time based on specific recommendations from a neutral consulting group, or whether the state can and will make the changes necessary to finally reform the Mississippi foster care system.
The plaintiffs in the lawsuit, who are all of the children in foster care in the state, had asked the court to find the state in contempt of the court orders for reform, and to appoint a receiver to take over the administration of the state’s foster-care system. The state’s admission of noncompliance resolves the first part of the contempt motion. The Order signed by the court today directs the employment of an expert group to make recommendations to achieve compliance and leaves open the question whether a receiver will be required to administer the state’s foster-care system.
The lawsuit was filed in 2004, asserting widespread violations of children’s constitutional rights in the foster-care system. Although the case was settled in 2008, the state has never been in compliance with the terms of the settlement.
This is the second contempt motion filed in the case. After the first motion, a new settlement agreement was approved by the Court but failed to produce necessary results.
“It was clear to us, given the state’s history in implementing these court orders, that the state simply lacks the capacity or the will to run a child-welfare system that protects the children of Mississippi,” said Marcia Robinson Lowry, executive director of A Better Childhood, a national advocacy organization that works on behalf of abused and neglected children. “We have asked the federal court to appoint a receiver to take over the system. However, we think the appointment of a well-qualified expert group to make specific recommendations is an important step forward, and we welcome the governor’s recognition of the depth of the problems.”
The governor has agreed to hire an executive director of the Department of Family and Children’s Services and waive state salary requirements for the director and for members of a senior management team. The state has also agreed to hire a national child-welfare consulting group, the Public Catalyst Group, to conduct an organizational analysis of the state’s foster-care system and recommend whether it should be a free-standing agency, how it should structured, and what the state needs to do to remedy all of its violations of the court-ordered reform plan. The expert group will also recommend qualified applicants for the head of the new agency, from which the governor will select the agency’s new director.
The governor has also agreed to call a special session of the legislature, if necessary, to support the reorganization of the child-welfare system and provide additional appropriations to act on the expert group’s recommendations, if the state agrees to adopt them.
The expert group will complete its work in four months, and after that time the state will decide whether to accept its recommendations and negotiate an additional court order to implement the recommendations with the plaintiffs. If the state fails to accept the expert group’s recommendations, the plaintiff children will immediately ask the court to reinstate the hearing on the contempt motion. In that case, with the state already having admitted to noncompliance, plaintiffs will ask the Court to appoint a receiver to implement the changes that the expert group will have recommended.
Plaintiff children are also represented by Wayne Drinkwater and Michael Bentley of the law firm of Bradley Arant Boult Cummings and by Christian Carbone and Dan Freidman of the law firm of Loeb and Loeb.
According to Drinkwater, “we are glad that the state has agreed that additional help is needed to ensure that the children of Mississippi receive constitutionally acceptable treatment in the state’s foster-care system. If the state accepts and fully implements the recommendations of the expert group, we hope that appointment of a receiver to administer the state’s foster-care system will not be necessary.”
A Better Childhood is a national nonprofit advocacy organization that uses the courts to reform dysfunctional child welfare systems around the country. Marcia Robinson Lowry, A Better Childhood’s executive director, is lead counsel in the Olivia Y. v. Bryant lawsuit since the case was filed in 2004.