New report in Olivia Y. v. Bryant case cites systemic failings in death of baby; court monitor finds it “imperative to address the ongoing limitations in defendants’ performance on an urgent basis.”

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

The state’s compliance with court-ordered requirements to protect children in the Mississippi foster-care system has worsened, according to a new report issued today by the court monitor in the Olivia Y. federal-court lawsuit. The state previously admitted that it had failed to comply with its obligations under the settlement agreement for the two previous years.

In addition to reviewing data demonstrating the State’s failure to comply, the monitor’s report summarizes a case study on the death of an infant during the most recent reporting period. The infant died within five days after entering state foster-care custody. After summarizing the state’s failures to meet statewide and regional court-ordered standards, “by considerable margins,” the report states that the case summary of the baby’s death “illustrates how the failure to maintain these standards may increase the risk of tragic outcomes.”

Among the critical unmet standards discussed in the monitor’s report are those “intended to ensure the safety of children” in state custody. The report underlines the state’s failure to maintain a sufficient number of properly licensed and supervised foster homes and a failure to have in place “an adequate number of qualified, trained, and properly supervised caseworkers who are not overburdened by excessive caseloads.”

Summary of baby’s death
The infant’s death illustrates failures in the state’s foster-care system. The baby was placed into a foster home in a region that has experienced severe staffing shortages along with a steep increase in the number of children in custody. No one from the state had ever inspected the home where the baby died before the baby was placed there, and two sibling groups had been removed from the foster home after reports of maltreatment. The foster parents’ own infant previously died from Sudden Infant Death Syndrome, under circumstances similar to this baby’s death.

In a report evaluating the factors leading up to the infant’s death, Judith Meltzer of the Center for the Study of Social Policy, an expert retained by the monitor, concluded that system failures contributed to the infant’s death, including:

  • failure to properly collect and document information significant to the licensing process. There was no evidence that information about the foster mother’s arrest, job loss, and medications was considered or even collected before the licensing decision occurred;
  • failure to record information in the case record. Ms. Meltzer found significant problems with the completeness and quality of documentation. She stated that the investigation narratives regarding the baby’s death were “unclear … at times incomprehensible and occasionally inconsistent.” She also noted many incomplete or contradictory case-record entries. The monitor found that the deficiencies noted by Ms. Meltzer “… are not unusual. Indeed the data related to defendants’ performance during period 5 … firmly supports this conclusion.”

Summary of provision of medical care
The monitor’s report also includes the results of a case-record review of medical care for children in state custody. The monitor found significant deficits in medical, mental health, and dental care afforded to children in the state’s custody.
The case record review found that:

  • Only 2% of children received a comprehensive health exam within 30 days of entering foster-care custody;
  • Only 17% of three year olds in foster-care custody who needed a developmental health assessment received it within 30 days;
  • Only 2% of foster parents received all medical information on a newly placed child within 15 days of placement.

The monitor’s report concludes that during the most recent period, the state’s performance deteriorated in many critical areas. Areas that performed relatively well earlier performed worse, and “the already-overburdened workforce faced a substantial increase in the number of children in custody and had neither sufficient placement resources nor an adequate array of services at its disposal.”

Status of case
On December 22, the Court entered an Interim Remedial Order which requires:

  • Establishment of a Division of Family and Children’s Services independent of the Mississippi Department of Human Services, led by an Executive Director who reports directly to the Governor;
  • Completion of a caseload analysis to help determine the appropriate number of caseworkers and supervisors needed by the state;
  • Increased compensation for DFCS caseworkers and supervisors to levels of similarly qualified staff in other agencies;
  • Providing smartphones, tablets, and adequate computer support for caseworkers;
  • Development of new foster homes.

Plaintiffs have asked the Court to appoint a receiver for the state’s foster-care system. That motion has been adjourned until May 15, 2016.

“The facts could not be more clear. The foster-care system in Mississippi is well beyond crisis,” said Marcia Robinson Lowry, executive director of the non-profit advocacy organization A Better Childhood and lead attorney for the foster children. “Children who are in foster care because they have already been abused or neglected are in continuing danger from the state itself. The responsible government officials know that there are far too few foster homes, too few workers, and foster children being placed in homes that either are not or should not be licensed. As the most recent monitor’s report demonstrates, the state does not even maintain adequate records to document what is happening to babies placed in its care. This must stop.”

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.

According to Drinkwater, “more than seven years have passed since the state promised to cure the constitutional violations in its foster-care system. Those promises have not been honored, and we doubt that Mississippi is willing or able to operate a legal and humane child-welfare system. If it does not, we believe that the Court may be forced to place the system under the control of a court-appointed receiver.”

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.

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Monitor’s Report for Period 5

For more information, please contact:

A Better Childhood