Foster Care Lawsuit

The settlement mandated 5 areas of practice changes that state agencies must “hit” for a 12-month period and then “hold” for another 12-month period in order to exit court oversight, as validated by a neutral expert. These include:

• Ending the practice of housing children in unsuitable places like offices and hotels;
• Ending the practice of night-to-night and short-term placements;
• Ensuring that placements are not overcrowded and do not exceed licensed capacity;
• Ending housing-related delays in the provision of mental health services; and
• Providing crisis intervention services for children throughout the state.

The settlement mandated 5 measurable outcome improvements for children, phased in over three to four 1-year periods. When state agencies “hit” the final target outcome after phasing it in, they must “hold” it for another 12 months in order to exit court oversight. These measurable outcomes include:

• Achieving a low average rate of placement (housing) moves, ultimately 4.4 moves or fewer per 1000 days in care;
• Addressing mental health and behavioral health treatment needs for at least 90% of cases;
• Ensuring the current placement is stable for at least 90% of cases;
• Limiting placement changes to 1 move over 12 months for at least 90% of cases; and
• Providing an initial mental health and trauma screen within 30 days of entering state care for at least 90% of cases.

The settlement is a fully enforceable federal court order that is binding on DCF, KDHE, and KDADS, and all current and future officials of these agencies.

The settlement is binding whether performance is by the state agencies or any providers under contracts or other agreements with the state. And the obligations of the settlement will become a part of all contracts.

The settlement appoints Judith Meltzer and the Center for the Study of Social Policy, a highly respected child welfare policy group, to independently validate the state’s performance.

The settlement requires a new independent advisory group, heavy on stakeholders outside of state agencies, such as providers, parents, and youth. The group can make public recommendations for change, and the state agencies must respond in writing to all recommendations.

For years, DCF and its contractors have regularly shuttled children back and forth to any available bed, couch, or contractor office that could be found, often 20, 30, 40, or even 50 or 100 times. The vicious cycle can repeat for days, weeks, or months.

Children often miss school, some run away, and some even fall victim to child sex trafficking. The impact on older youth is particularly acute, leading to bleak outcomes for them when they age out of the system. Meanwhile, the state has also failed to provide children in foster care with desperately needed mental health screenings and services.

The M.B. v. Howard lawsuit alleged not only that the devastating housing instability crisis imposes emotional and psychological harms and risks of harm on children who were already traumatized upon entry into the system, but also that the extreme instability actually causes physical harm to children’s normal brain development. It is widely known and supported in published studies that the chaos imposed by housing instability can negatively affect normal physical brain development, altering children’s ability to form trusting attachments with adults and causing other mental health conditions.

“When we began speaking with Kansas youth, families, and advocates about their experiences with the foster care system, we were shocked by the intensity of the housing instability they described. We learned that youth were regularly being dropped off at a new foster home night after night without being offered so much as a warm meal or a shower before being picked up the next morning, and that it was not uncommon for a young person to repeat this grueling experience hundreds of times,” said Leecia Welch, senior director, Legal Advocacy and Child Welfare, at the National Center for Youth Law. “For the thousands of youth who essentially experienced state-sanctioned homelessness while in DCF custody, we hope this settlement results in fundamental change.”

The Powerful Stories of Plaintiff Children

The experiences of the plaintiff children named in the case brought to life the impact housing instability and lack of mental health services have had on children while in the care of the Kansas Department of Children and Families (DCF).

• M.B. and S.E., 8- and 10-year-old brothers, were immediately separated from their sister and subjected to night-to-night placements upon entering custody in 2018. After a four-month placement together in the same foster home, the boys’ foster parent was unable to support them because their mental health needs were unmet by the State. DCF separated the brothers and continued to move them through a string of night-to-night placements.
• R.M., a 15-year-old boy who has been in state custody for eight years, has been bounced around by the system more than 130 times, including to foster homes, group homes, other facilities, and night-to-night placements. Although R.M. was diagnosed with post-traumatic stress disorder (PTSD) and other conditions while in the care of the DCF, his treatment has been delayed and disrupted, in part because of how often he has been moved around.
• Z.Z. is a 13-year-old girl who has been in DCF custody for seven years. As a 5-year-old, she was removed from a foster home placement when her foster mother became ill. Z.Z. began to have behavioral health issues and was placed in a psychiatric residential treatment facility. She was improving—until her treatment was abruptly halted and she left the treatment facility. Even as her mental health deteriorated, she was moved through a series of one-night placements, including being forced to sleep overnight in child welfare contractor offices.

“This lawsuit was about a profound lack of accountability over a broken system, and we give real credit to DCF Secretary Laura Howard and other state officials for stepping up, owning the problems, and promising to fix them,” said Ira Lustbader, Litigation Director at Children’s Rights. “This Plaintiff team, and a powerful network of local allies, are not going away—this is just the beginning. We will be right there to ensure these changes occur—these kids deserve nothing less.”

To learn more about this suit, click here.