October 8, 2009
NASHVILLE, TN — Judges presiding over life-altering juvenile and family court hearings in Tennessee say a new state law aimed at pressuring them to reduce the number of children they commit to foster care violates children’s constitutional rights and will erode public confidence in the integrity of the judicial process if a federal judge now hearing a challenge to the law allows it to stand.
“A more overt invasion of judicial independence is difficult to envision,” writes the Tennessee Council of Juvenile and Family Court Judges in a (PDF) filed late Tuesday with the U.S. District Court in Nashville in support of a move by the national child welfare advocacy organization Children’s Rights to block implementation of the law. Created by state law in 1982 — and existing more than 40 years before that as an informal group — the council is the official organization for all juvenile and family court judges in Tennessee.
Passed as part of an omnibus budget bill that took effect in July, the law says that the state will pay the daily costs of foster care for only a set number of children in state custody, and it establishes fiscal penalties for counties whose judges commit more than a prescribed number of children (three times the statewide average). In September, Children’s Rights asked the federal judge presiding over its longstanding class action to reform the Tennessee child welfare system to strike down the law.
“The most basic notions of due process and equal protection mandate that every commitment decision be made solely on the facts of each case, and that children should not be treated differently based on factors unrelated to their cases,” the judges write in their brief. “Yet both the intended and actual result of [this law] is to impermissibly intrude on the independence of Tennessee’s juvenile courts, and to deny the equal protection of the law to children appearing before those courts.”
Children’s Rights attorneys representing Tennessee’s abused and neglected children contend that the law fails to take into account the local circumstances influencing foster care placements in each county and the unique facts of each child’s case.
They point to Anderson County, an undisputed target of the law, which leads the state in both the number of methamphetamine lab seizures and the number of children committed to state custody due to parental substance abuse. In measuring individual counties’ foster care placements against a statewide average without considering such unique local circumstances, Children’s Rights officials say, the law “is completely disconnected from these realities.”
The judges cite Hardeman County, which was already near the limit imposed by the law when it went into effect, as another example. Children who come before the court there and in other counties that are at or near the limit will not receive the same fair hearing afforded kids who live in counties that remain comfortably below the limit, according to the judges.
“Dispositions in these cases will include the consideration of the financial consequences to the county of commitment to state custody,” the judges write. “Even if commitment to state custody is the best disposition for a particular child, the mere timing of the case will affect, unconsciously or otherwise, the judge’s commitment decision.”
Ira Lustbader, associate director of Children’s Rights, welcomed the judges’ support.
“Tennessee’s juvenile and family court judges have made clear that they believe this law endangers the abused and neglected children who depend on them to make critical decisions about how best to protect them from harm,” Lustbader said. “We agree with the judges that kids should not be taken into state custody if it can be safely avoided, and that these decisions must be based only on the facts of each individual child’s case, not on the tally of children already committed into state care.”
Lustbader points out that in most cases, it is the state that is asking judges to put abused and neglected children into state custody in order to protect them — and the state now wants to count those very cases against an arbitrary limit. Furthermore, he says, the state has other, lawful means of reducing foster care placements, including appealing individual judges’ decisions it believes to be unfounded and, most important, increasing services to keep vulnerable families together in all counties.
Oral argument on Children’s Rights’ motion to block the law will be heard by Chief District Judge Todd J. Campbell of the U.S. District Court for the Middle District of Tennessee in Nashville on Tuesday, October 13, at 9 a.m.
Children’s Rights and a team of Tennessee attorneys have represented all children in Tennessee foster care since 2000, when they filed a class action against the state seeking the comprehensive reform of the state-run child welfare system. Agreements negotiated by attorneys at Children’s Rights to settle the case established court-enforceable reform plans that have produced major improvements — including increases in the number of children moved out of foster care and into permanent homes and reductions in the number of foster children housed in institutions, separated from their siblings, and placed in foster homes far away from their own communities.
The judges’ brief — and a complete archive of documents related to Children’s Rights’ efforts to reform Tennessee child welfare — can be found at www.childrensrights.org/tennessee.