Michelle H. v. McMaster

On October 4, 2016, U.S. District Judge Richard M. Gergel granted final approval of a landmark settlement that requires dramatic changes for South Carolina’s foster care system — which for years has been troubled by a shortage of foster homes, excessive caseworker caseloads, and a failure to provide basic health care to kids. The settlement appoints two national, child welfare experts as independent co-monitors, Paul Vincent of the Child Welfare Policy and Practice Group and Judith Meltzer of the Center for the Study of Social Policy. They will issue periodic, public reports on the state’s progress in meeting benchmarks outlined in the settlement. The agreement will stay in place until the state meets and then sustains each obligation for a year. The settlement also makes final a set of interim relief agreed upon last September during negotiations, including ending practices such as: allowing children in state custody to stay overnight in hotels and Department of Social Services (DSS) offices; placing kids age 6 and under in group facilities; and leaving foster kids in juvenile detention facilities even though they have completed their sentence or plea because there are no places to house them in foster care.

On June 3, 2016, after more than a year of negotiations, the parties jointly filed a proposed settlement agreement, that requires DSS to make and sustain targeted improvements to foster care statewide. The proposed agreement, which requires the approval of the federal court, laid the groundwork for a robust monitoring process in which two child welfare experts issue regular reports on South Carolina’s progress towards full compliance with the benchmarks outlined in the agreement.

Children’s Rights, along with co-counsel the South Carolina Appleseed Legal Justice Center and Matthew T. Richardson, partner at the Wyche P.A. law firm, filed this case against Nikki Haley, in her official capacity as Governor of South Carolina, and Susan Alford, in her official capacity as State Director of the DSS. The class action, seeking reform on behalf of the nearly 3,400 children, in foster care statewide, asserts that as a result of pervasive failures by DSS, “Children have been and continue to be harmed physically, psychologically and emotionally, and continue to be placed at constant risk of such harms while in DSS custody.”

According to the complaint, the state’s severe lack of foster homes causes alarming consequences for children. For example, children are:

• Placed in institutions, instead of in homes with families. DSS has the highest rate in the country for institutionalizing children 12 and under, according to the most recent federal data.
• Unnecessarily housed in detention centers. When children in DSS custody come into contact with the juvenile justice system, some remain in detention facilities simply because DSS has nowhere else to house them.
• Denied placements and treatment to meet their medical needs. From 2007 to 2012, DSS denied therapeutic placements to over 3,600 children whom the agency identified as needing such placements.
• Frequently moved between homes and facilities. In 2012 alone, more than 26 percent of children in DSS custody had four or more placements and more than 14 percent – nearly 930 kids – experienced six or more placements during their most recent stay in care, according to federal data.
• Denied opportunities to maintain family relationships. Children are often placed far from their biological families, and siblings are often split up and denied visits with each other.

In addition, DSS fails to provide children with basic medical, dental and mental health evaluations and treatment as explicitly required by law. Caseworkers are so overburdened that kids are at risk, leading to maltreatment in foster care that goes uninvestigated and inaccurate data that masks a much higher rate of abuse and neglect in care than the state reports to the federal government.

Return to In The Courts