Last year, a federal court of appeals dismissed a class action lawsuit against the state of Indiana over its handling of placements and services in foster care.
But litigators in that case have filed a new class action against the state, with ten new clients, seeking similar relief on behalf of all youth in Indiana foster care.
Annabel B. et al. v. Eric Holcomb and the Indiana Department of Child Services alleges that it ignored the children’s problems, failed to provide necessary services, moved them among a variety of placements, and left them in placements it knew were dangerous.
“Tragically, the child welfare system in Indiana continues to ignore the needs of its most vulnerable children,” said Marcia Robinson Lowry, executive director of A Better Childhood, one of the organizations that filed the lawsuit. “It is critical that this agency and the state are held accountable for what they are doing to the children they are required to protect.”
The lawsuit was filed in the U.S. District Court for the Northern District of Indiana on behalf of nine children in foster care, but the relief sought is for conditions system-wide.
The plaintiffs, who are ages 8 to 16, have all been in foster care for several years. The lawsuit asserts that the Department of Child Services (DCS) failed to provide necessary services, moved the children among a variety of placements, and left them in placements that DCS knows are dangerous.
The lawsuit also contends that the state unnecessarily institutionalizes children because it has too few therapeutic foster homes, and violates the Americans with Disabilities Act by failing to provide community-based placements.
DCS declined a request for comment on the lawsuit.
One of the plaintiffs, a 15-year-old named Kimberly, was removed after her stepfather raped her sister. She was placed in the home of a grandmother, who the lawsuit alleges had been denied a foster care license, and whom DCS knew “was selling pain medication to friends for money to buy gas.”
Kimberly was subsequently sexually abused by the grandmother’s neighbor, and moved to a foster home that the lawsuit says was not fully informed of her very serious behavioral health challenges. When the foster parents were unable to continue caring for Kimberly, she was placed back with the same grandmother.
“Indiana DCS has failed to protect the children in its care and in doing so has violated their constitutional rights,” said Aaron Marks, Partner at Kirkland & Ellis, another law firm representing plaintiffs in the lawsuit. “We hope this case and the relief we seek from the Court will provide much-needed improvements to the lives of these children and their communities.”
A similar case, Ashley W. v. Holcomb, was filed in 2019 by the same law firms involved in this week’s action. The case was dismissed by the 7th Circuit Court of Appeals in May of 2022, which found that the case was moot because most of the plaintiffs involved had exited foster care by the time it ruled, and because the relief sought in the lawsuit was not within the purview of federal courts.
“Disputes that can be resolved in a (child in need of supervision court) case must be resolved there,” a 7th Circuit panel said. “It is essential to determine which is which.”
Lowry told Youth Services Insider that all of the plaintiffs in the new filing have “live claims,” and that they are asking for changes that are “specific and can be granted only by a federal court.” That relief, she said, includes establishing mobile crisis units; ensuring that medical information is conveyed to foster and kinship caregivers at the time a child is placed with them; and developing a caseload counting methodology that accurately reflects the workload of DCS workers.
“If the state had gotten marvelously better” in the time since the 7th Circuit dismissed the previous lawsuit, Lowry said, “we wouldn’t have brought this.”
A different federal lawsuit against Indiana, Nicole K. v. Stigdon, sought to compel the state to guarantee the appointment of counsel to children involved in child welfare cases. The 7th Circuit declined to agree, finding that “because children are not automatically entitled to lawyers … it would be inappropriate for a federal court to resolve the appointment-of-counsel question.”