(Boston, MA) — National advocacy organization Children’s Rights and Boston law firm Nutter, McClennen & Fish filed the main brief to the First Circuit Court of Appeals in support of Connor B. v. Patrick, asserting that a federal district judge erred when he ruled that the failings of Massachusetts’ child welfare system did not warrant injunctive relief.
The brief states that a “new, two-pronged” culpability standard applied by the district court — one that shows the “Defendants’ conduct represented a substantial departure from accepted professional judgment . . . and that such conduct shocks the conscience” — violates Supreme Court precedent, which sets a lesser standard for substantive due process claims in the non-penal, custodial setting.
“Ultimately, Plaintiffs, vulnerable children who are wholly dependent on the state for their safety and well-being, were erroneously held to a standard of proof no less burdensome than the standard to be met by an incarcerated felon,” the brief states.
In addition, the district court cast aside its own sweeping findings on the problems plaguing DCF and stated that the responsibility for fixing it ultimately lies with lawmakers who have the power to appropriate monies for an underfunded system. In so doing, “the district court erroneously permitted fiscal considerations to infect its consideration of Plaintiffs’ substantive due process claims.”
“Constitutional and statutory violations are rampant in DCF foster care,” states the appeal, filed this week. “If this Court were to accept the district court’s view that federal judges must yield to executive and legislative prerogatives when such priorities are inconsistent with the state’s constitutional obligations to the state’s most helpless citizens, the consequences would be far-reaching.”
The brief notes DCF’s “abdication of professional judgment in administering” its foster care system in a number of areas, including:
*Maltreatment in care. “If DCF had met the national standard for absence of maltreatment in care in 2011, 54 fewer children would have suffered abuse or neglect in foster care, an average of approximately one child per week.”
*Caseworker visits. Citing federal performance data, the district court found that “from 2008 to
2011, between 43% and 50% of children received monthly visits from the[ir] caseworkers . . . which fell far below the 90% [federal] benchmark set for this metric during that time period.”
And an internal monthly “Home Visit Report” covering August 2012 showed that 1,416 children with open DCF cases had not been visited by their caseworkers within the two prior months, and 521 had not been visited within the three prior months.
*Medical screenings. Despite federal law requiring timely medical screenings, in 2011 only 12.1 percent of foster children received medical visits within seven days, and only 7.1 percent had medical visits within 30 days, far belowDCF’s own modest compliance targets of 50 percent.
The district court opinion, issued last November, made clear the failings of the system. “When the court dismissed the case, it noted a well-documented ‘laundry list of problems plaguing DCF’ in multiple areas,” said Marcia Robinson Lowry, executive director of Children’s Rights. “The systemic deficiencies within DCF have a devastating impact on children’s lives. If the proper legal standard is applied, it’s patently obvious that the abused and neglected children of Massachusetts are in desperate need of injunctive relief.”