A Litigation Landmark: Case Closed in Tennessee

Ira Lustbader, litigation director for Children’s Rights, a New York-based nonprofit that specializes in class-action lawsuits against child welfare agencies.

This was originally published by The Chronicle of Social Change

The other day I got one of those emails that you never forget. It was headlined U.S. District Court, Middle District of Tennessee, and it read:

“… IT IS ORDERED, ADJUDGED AND DECREED that this Court’s jurisdiction over this case is hereby TERMINATED and this case is DISMISSED WITH PREJUDICE in all respects.”

You might think a lawyer never wants to hear his case has been dismissed. Not this one. Reading those words meant success. I had worked on the case for almost 20 years. I had spent countless hours in Tennessee, getting to know remarkable children and families, local advocates, and so many hard working people committed to making the state’s child welfare system better. I had seen the system work through many challenges, implement numerous positive changes, and undergo a profound transformation.

On May 10, 2000, Children’s Rights and our co-counsel brought a class action lawsuit against Tennessee on behalf of the thousands of children in the state’s foster care system. The lawsuit focused on improving the state’s child welfare policies, programs and outcomes. It was one of the first lawsuits to explicitly call out racial disparities in treatment and outcomes for children in child welfare. The case was named for a little boy from Shelby County, Brian A., one of eight named plaintiffs when the case was filed.

At the time, the situation for kids in foster care in Tennessee was dire. They were being kept in overcrowded emergency shelters for weeks, moved abruptly from placement to placement, denied contact with siblings and their home communities, and unnecessarily warehoused in inappropriate group facilities. They were not given opportunities to be reunited with their parents or find other permanent homes and were denied basic casework services or appropriate schooling. Too many kids grew up in state custody.

Denise, one of the plaintiffs in the Brian A. lawsuit in Tennessee, in 2001.

Well before we filed Brian A., Tennessee lawmakers from both parties knew they had a problem, and they took steps to improve the system. But the state’s reform efforts floundered. By the late 1990s the number of children in foster care had skyrocketed, staffing and resources could not keep pace, and systemic failings meant that children were at increasing risk.

As is true in many cases, harnessing the power of the courts proved to be the most effective tool to spark lasting reform. Using the law allowed us to hold Tennessee accountable for meeting specific, court-enforceable benchmarks to ensure more kids were safe and had a better chance of becoming part of permanent families.

In 2001, the court approved a settlement agreement in Brian A. aimed at vastly improving the infrastructure at the Tennessee Department of Children’s Services (DCS) — and ultimately delivering better outcomes for children. Progress did not come quickly. But it came.

Today, foster children in Tennessee are getting reunified with their families or adopted more often and faster, and the housing system for children in foster care is driven by families, not facilities. More older youth are getting the critical assistance they need. Caseworkers have manageable caseloads, allowing them to provide oversight of children’s safety and well-being. And DCS is making progress in combating the overrepresentation of African American children in the foster care system. DCS leadership has embraced the necessity of investing at the front end of the system, so children can remain in their families and not enter the foster care system in the first place.

Still, for all the progress, the system remains far from perfect. We know heartbreakingly well that problems remain, new ones will erupt, and for some kids — too many kids — there are bad, sometimes tragic outcomes. But under the Brian A. reforms, Tennessee built a robust quality assurance program and the capacity to evaluate and learn, adjust and continually improve. In short, the reform campaign established the tools and resources so that informed decisions can be made and the services kids and families need can be provided. This can make all the difference in the lives of these children.

Right in line with the court’s dismissal of the lawsuit, a comprehensive report detailing the lessons learned under the Brian A. reform was issued earlier this month by the Center for the Study of Social Policy (CSSP). The report details the factors that made real, systemic child welfare reform achievable in Tennessee. It’s a great resource for other states that can benefit from what we learned along the way.

Ira Lustbader with Denise, one of the plaintiffs in Brian A., in 2005.

The road to a fundamentally higher functioning, more accountable system for vulnerable kids in Tennessee was a long one. In the end, I realize the case was also a collaboration with many strong, visionary leaders at the very agency we sued. Looking ahead, local advocates, agency leadership and staff, services providers and elected officials will surely need to fight to keep the system transparent, accountable and fully funded. But the roadmap is there.

“Denise” was another one of the original plaintiff children when we filed the Brian A. lawsuit in 2000. Her resilience and bright smile knocked me over back then when she was just 8 years old. That same smile and resilience, in the form of a remarkably strong 25-year-old woman, was there with me at a recent court hearing where a federal judge recognized the numerous improvements in the system. The judge asked Denise to stand up, and in the packed courtroom he thanked her for her huge part in making the system better for other kids.

You should have seen her face. It is why we will not stop doing this work at Children’s Rights.