Indiana has one of the highest foster care removal rates in the country. Its child welfare system has been stressed more than most by the effects of the opioid epidemic. Its former child welfare director resigned in protest, warning that children would die without new spending and priorities.
And now, its Department of Child Services (DCS) is being taken to court by the nonprofit litigation firm A Better Childhood (ABC), who recently filed a similar suit against Oregon and last week sought a court takeover of Mississippi’s system.
Ashley W. v. Holcomb, the class action complaint – filed today in the U.S. District Court for the Southern District of Indiana, Evansville Division – includes nine plaintiff children between the ages of 3 and 16. It names Gov. Eric Holcomb (R) and DCS Director Terry Stigdon as defendants.
The lawsuit alleges that DCS is often cycling youth through frequent placement changes, leaning heavily on group care for older and disabled kids, and failing to provide reunification services to parents. It seeks class certification for all children in the legal or physical custody of DCS, and submits a subclass of youth who “have emotional, psychological, cognitive or physical disabilities.”
“Despite the fact that the state knows it does not have enough foster homes, or therapeutic homes, the state is doing very little, if anything, to develop additional placements for kids,” said ABC Executive Director Marcia Robinson Lowry, in an e-mail to The Imprint. “The state has passed legislation to lower caseloads in this most recent session but its ‘reforms’ do not deal with much of anything else and it is not developing new placements, particularly therapeutic ones, while kids languish in locked institutions.”
DCS declined to comment about the complaint.
“We do not comment on pending litigation,” said Noelle Russell, deputy director of communications for the agency.
Indiana is the 15th most populous state, but it is among the five states where one-third of all foster youth in the United States live, according to recent federal data. Indiana’s foster care population has nearly doubled from 2011 to 2017, from 10,779 to 20,904.
The number of children awaiting adoption went up 80 percent between 2012 and 2017. The number of children placed in institutions was nearly 1,200 in 2017, more than all but a handful of states.
According to DCS statistics, the number of youth in care has since dropped significantly, to 14,313 in May of this year.
“Indiana takes double the national average of children into foster care as other states,” Lowry said. “Young children move repeatedly from place to place, because of poor planning and management by overloaded workers.”
The state is frequently institutionalizing older, troubled children, Lowry said, “many of whom have gotten that way because of how they have been treated in the foster care system.” Those institutions often include rooms that look “like jail cells, in facilities with little or no services to treat them,” she said.
The plaintiffs’ stories paint a picture of an agency that is at times moving toward questionable reunifications or placing youth with relatives who they’ve had little to no contact with previously. One girl, identified as Sara, was reunified with a sexually abusive father who then abused her again. The agency pushed for two brothers, Jaidyn and James, to be moved from a stable foster home to an aunt who had never met them or visited them in care.
Other youths in the case landed in institutional care, saddled with mental health challenges that ABC alleges were exacerbated by frequent cycling through foster care placements. Logan, now a teen, has been in a private secure facility since October of 2018. Another teen, Desmond, who at 9 was rescued after his parents’ meth lab exploded, ended up in the adult wing of a nursing facility.
In 2017, Mary Beth Bonaventura, who had been appointed to lead DCS in 2013 by former governor and now-Vice President Mike Pence, resigned abruptly in protest.
“I feel I am unable to protect children because of the position taken by your staff to cut funding and services to children in the midst of the opioid crisis,” Bonaventura said, in a letter that was ultimately obtained by the Indianapolis Star. “I choose to resign, rather than be complicit in decreasing the safety, permanency and well-being of children who have nowhere else to turn.”
The state hired the Child Welfare Policy and Practice Group to assess the child welfare system and make recommendations for reform. In a report released last July, the group said Indiana should bolster its ability to serve families without removing children, and narrow its maltreatment definitions to “exclude neglect which is based solely on poverty or limited, one-time lapses in parental judgment.”
The lawsuit is mostly focused on the state’s practices once it removes a child, although Lowry said there is evidence that DCS often leaves children “with parents who promise to do better, but who are not getting any help in actually doing so.”
“The state may be taking too many children into care – we don’t know that, although it is taking a larger number than other states – but its adoption rate for kids who have adoption goals is extremely low,” she said. “So kids are not getting out of care appropriately, sent home with services or being adopted.”
It also said DCS should study “outlier” counties where children in care stayed for a disproportionately long time to “determine what factors contribute to cases remaining open for lengths of time that exceed the state average by 20 percent or more.”
The report did also recommend the extension of foster care to age 23, which DCS has moved on, using funds from the federal Chafee Independent Living Program. Indiana Gov. Eric Holcomb (R) touted progress made by the agency at a recent bill signing for legislation to boost supports to foster families.
“What we continue to hear from the back office to the front lines is the culture has improved such that people are truly enjoying, not just seeing these numbers, these good numbers, the results come in, but the way that they’re affecting people’s lives,” he said.
Legislators have approved an increase of $243 million for DCS in fiscal 2020 and another $223 million increase for fiscal 2021.
Indiana was sued in 2014 by an adoptive parent, Debra Moss, on behalf of families who argued that the state had unpaid adoption subsidies. The state settled and paid $15.1 million to families involved in the suit.
The lawsuit was filed jointly with law firm Kirkland and Ellis, and the nonprofit Indiana Disability Rights.