Plaintiffs ask for a federal court takeover of the Mississippi child welfare system to ensure that children are protected, citing the state’s lack of capacity to do so.

Olivia Y. v. Bryant, Case No. 3:04-CV-251-LN, U.S. District Court, Southern District of Mississippi, Jackson Division

Citing a court monitor’s report finding widespread failures to comply with court-ordered requirements to reform the state’s foster care system, plaintiffs in a long-standing federal lawsuit, Olivia Y. v. Bryant, on Monday filed a motion asking the federal judge in the case to find the state in contempt of court and to appoint a receiver to take over the system to ensure that necessary reforms are made to protect the state’s foster children.

The lawsuit was filed in 2004, asserting widespread violations of the constitutional rights of children in the Mississippi foster care system, and resulted in a settlement agreement approved by the federal court in 2008. After two years of efforts to obtain compliance with the terms of the settlement plaintiffs asked the court in 2010 to find the state in contempt. The court found that the state was in noncompliance with “virtually all areas covered by the agreements” but declined to hold the state in contempt at that time. Instead, the court directed the parties to renegotiate the agreement and to “establish realistic timelines.” A Modified Settlement Agreement was approved by the court in July 2012.

The court monitor, Grace Lopes, who has access to the state’s data and is required to report on the state’s compliance with the Modified Settlement Agreement, noted in her most recent report, “The data that defendants have produced combined with the capacity deficits addressed in this report highlight substantial shortcomings in the defendants’ performance that put children at a continuing and unreasonable risk of harm.”

In their current contempt motion, plaintiffs are asking the court to appoint a group of experts with experience in implementing child welfare system reform. The group would conduct an organizational analysis identifying the systemic deficiencies that need to be remedied in order to achieve compliance with the Modified Settlement Agreement. Plaintiffs are further asking the judge to appoint a receiver with the authority to implement the recommendations of the expert group.

According to the most recent Monitor’s Report, the state is failing to produce reliable data on many of the key elements of the settlement agreement, and of those elements on which data is available it is not meeting the required standards. For example, there is virtually no reliable information on hiring and worker attrition and thus no reliable information on which to determine worker caseloads, no reliable information about maltreatment in care, and virtually no information about how the state addresses problems in the treatment of children. Even in the regions of the state in which a new “Case Practice Model” has been implemented, performance is well below the standards set in the Modified Settlement Agreement.

In their motion, plaintiffs have asked the court to schedule an evidentiary hearing on the issue of contempt and on the appointment of a receiver to administer the state’s child welfare system.

Dr. Viola Miller, who successfully reformed two child welfare systems when she was their director—one in Tennessee, which was under a court order, and one in Kentucky—described the situation in Mississippi as “dire,” in a declaration submitted in support of plaintiffs’ motion. “From what I have read in the Monitor’s Report, it seems highly likely that the child welfare agency in Mississippi lacks the capacity and/or the will to do what is necessary for the children of the state and to act in accordance with the court order which the state negotiated and by which it agreed to be bound,” Dr. Miller stated.

“For over seven years, the court-ordered effort to safeguard Mississippi’s children has been marked by repeated failings on the part of the state, then by negotiations, renegotiations, a court-ordered revision of the initial Settlement Agreement, efforts at alternative approaches, and several additional, targeted court orders, all without producing better protections for Mississippi’s children,” said Marcia Robinson Lowry, lead counsel for plaintiffs and executive director of A Better Childhood, a national non-profit child advocacy organization.

Plaintiffs are also represented by Wayne Drinkwater and Michael Bentley, of the Jackson, MS, office of the law firm of Bradley Arant Boult Cummings, and by Christian Carbone and Dan Friedman, of the law firm of Loeb and Loeb.

“We filed the contempt motion reluctantly,” Drinkwater said, “but we believe that without prompt and significant action by the court, the welfare of the children in Mississippi’s child welfare system is in serious jeopardy.”

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, has been lead counsel in the Olivia Y. lawsuit since the case was filed in 2004.

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