A legal decision this week signaled the end of a grueling, three-decade fight to improve the experience of foster children in the nation’s capital, a system once so troubled, there were missing records for how many thousands of kids had been removed from their families and taken into government care, or where they had been placed.
On Tuesday, a federal judge issued final approval for a settlement between Washington, D.C. and legal advocates, who now say the most obvious of the old systemic problems are fixed. A court-appointed watchdog in place since the early 1990s will now gradually scale back its work scrutinizing the district performance on dozens of quality metrics affecting nearly 700 foster youth and their families, almost all of whom are identified as Black or African-American in city data.
The U.S. district court for the District of Columbia originally intervened because the system was in “shambles,” Judge Thomas Hogan declared in 1991. Now, the city’s Child and Family Services Agency (CFSA) “has built necessary infrastructure, and follows best practices designed to better serve children and families,” according to the monitoring team Judge Hogan appointed decades ago.
In a statement released this week, Washington Mayor Muriel Bowser hailed the long-awaited closure of the case most recently known as LaShawn A. v. Bowser, saying it represented the district’s commitment to protecting its most vulnerable children.
“It says that as a community, we’re dedicated to making sure our families get the services they need to keep their children safe and well,” Bowser stated. “With a steadfast focus on family, love, and prevention, I am proud that CFSA has transformed into a national leader in the child welfare space.”
The attorney for the foster children, renowned litigator Marcia Lowry, said notices were sent to roughly 2,300 people with a stake in the case, including current or former foster youth, describing the settlement and offering them the opportunity to object, which none did. She also said she hasn’t heard from any of the original seven plaintiffs in years, including LaShawn.
In an interview, Lowry said that over the long life of the case, LaShawn’s voice as a 7-year-old — relayed through the foster child’s psychiatrist — has remained with her. When asked by the clinician: “Who do you love?” Lowry recounted LaShawn’s devastating response: “No one.”
And when asked “Who loves you?” again, the girl replied: “Nobody.”
Lowry filed the lawsuit on behalf of LaShawn and six other children in 1989 as an attorney with the American Civil Liberties Union, and has continued litigating the case as head of A Better Childhood, a New York-based nonprofit law firm.
“It takes a long time to turn around a child welfare system, particularly one as bad as the D.C. system was when we filed suit,” Lowry said. “With persistence and the continuous oversight of the court and the monitor, this system managed to emerge from receivership and become the progressive and well-managed system it is today. This case proves it can be done.”
Starting at age 4, LaShawn had spent two years in a placement designed for 90-day emergency stays, during which time the city agency provided no services for her to reunite with her mother.
The litigation the ACLU filed on behalf of LaShawn was sweeping, accusing the city of violating the 14th amendment of the constitution, and a long list of federal and local laws. According to the federal district court monitor’s most recent report released in March, those failings included allowing infants to be abandoned in hospitals with no follow-up; providing inadequate support services for families to prevent foster care; and unfairly targeting Black mothers for child removal during the crack cocaine epidemic.
Tom Wells saw it firsthand. Wells had become a child welfare worker in the 1980s with the same dream as many other social work graduates still in their 20s: to devote his time to the district’s most vulnerable citizens. Instead, he said he encountered an overlooked, underfunded bureaucracy buried in a high-poverty, racially segregated city government, amid a worsening budget crisis.
He and some of his colleagues were each responsible for tracking more than 100 kids at once — with few family foster homes available, broken down city vehicles and collection jars needed to buy typewriter ribbon to complete reports. Wells recalled that social workers went to sleep every night praying one of the kids on their caseload wouldn’t be the subject of a tragic story in the newspaper the next morning.
“The system was collapsing,” he said.
Wells — who became a city councilman, mayoral candidate and now a Bowser administration official — was one of two social workers to testify against their employer in the LaShawn case.
In response to the 1989 lawsuit, the court ordered the agency to overhaul nearly every facet of its work — from how it handled initial child abuse and neglect reports to the post-adoption services it provided. The litigation spanned decades due to the frequent turmoil the agency faced, incessant budget crises and leadership changes under six mayors.
The court also ordered up strict oversight. For decades, monitors from the Washington-based Center for the Study of Social Policy have had access to agency staff and leadership, individual case files and aggregate data. The center has issued regular public reports on the agency’s performance on an array of issues including child protective services investigations; social workers’ home visits, visits between parents and their children; the appropriateness of foster care placements and the provision of dental and health care.
Lowry is well known in the child welfare field nationwide for filing cases similar in scope to LaShawn v. Bowser, lawsuits that demand sweeping change and result in lengthy monitoring. Her work was described in the acclaimed book “Lost Children of Wilder” two decades ago.
Supporters say the massive class-actions filed by Lowry and other legal advocacy groups have prompted jurisdictions like Washington, D.C., to devote far greater resources and attention to the quality of foster care. But critics counter that the lawsuits can have unintended consequences by limiting other crucial reforms — particularly those promoting family preservation and reunification for the disproportionately Black and Native American families in the child welfare system.
Last week, Children’s Rights, the pro bono legal advocacy group Lowry founded and led until 2014, announced that it was expanding its focus to prevent foster care removals through litigation and advocacy, declaring “ending racism in child welfare is among the most urgent civil rights battles of our time.”
Still, there is widespread agreement that the child welfare system in Washington, D.C., has improved, at least from its once-dismal state. Lowry also said parents were served by the litigation, and the LaShawn case “resulted in a lot more money coming in for family preservation.”
Along with other legal experts, she praised the leadership of Brenda Donald, the current director of the Child and Family Services Agency, and credited her with lowering caseloads and expanding programs to prevent foster care placements. When the LaShawn case was filed, as many as 3,000 children spent an average of nearly five years out of their homes — double the national average. Now, there are fewer than 700 kids spending an average of less than two years in foster care.
In an interview, Donald — who is leaving her post in the coming weeks to take a temporary position leading the district’s housing department — said she was proud of the Child and Family Services Agency.
“My goal as director was always that we should not be managing the agency just for the lawsuit. We’re doing things that weren’t envisioned in the lawsuit,” she said. “We built an agency where everyone had confidence in our ability to get great outcomes for kids and families and by doing those things we’d meet the requirements of the lawsuits. I think that’s paid off.”
Yet for all the changes enacted by the city council and child welfare agency since the LaShawn case was filed 32 years ago, some problems have remained stubbornly stagnant. According to this year’s court monitor report, roughly 90% of foster children are identified as Black or African-American, even though they only make up around 50% of all the city’s children. And there are still some performance commitments that the former court monitors will continue to oversee for another year, now as an “independent verification agent.”* Central among the remaining issues is the instability of placements in the foster care system, upheaval that’s considered harmful for children.
Meanwhile, the pandemic has hurt efforts to recruit foster parents and pursue family reunifications, according to the monitor and the Washington City Paper, which has reported that some staff believe the agency is overstating its recent success.
“One of the things that allowed the lawsuit to close is that it’s been going on for a long time. Exhaustion sets in, and people need to find different ways to fix a new set of problems,” said Judith Sandalow, executive director of the Children’s Law Center, which represents about half of the foster youth in the district. The law center recently helped wage a successful campaign for an Office of the Ombudsperson for Children, which Sandalow sees as the sort of new mechanisms the city will need to replace the accountability the LaShawn litigation forced on the Child and Family Services Agency.
Matthew Fraidin, a law professor at the University of the District of Columbia who has represented children and parents in court said, "the reality for decades was, the child welfare system was ruining children’s lives and ruining their family’s lives. Through Brenda Donald's leadership and the unified work of everyone at the agency, they have created a new reality, by dramatically reducing the number of children taken from their families.”
But Fraidin warned that if the district "reverts back to the bad old days of removing kids unnecessarily and asking questions later,” the problems of the past will appear again. "We will inevitably be back in federal court if the district doesn’t maintain its rigorous approach to balancing the harm of removal versus the consequences of being allowed to stay in the home."
*Correction, June 3, 2021: This sentence previously stated there are 24 benchmarks the court monitors will continue to oversee for a year. It has been revised to reflect that the 24 benchmarks are no longer being court-monitored. The former monitor will continue to provide some oversight, now as an “independent verification agent" under a contract within the court's jurisdiction but outside the original class action.