Setting the Standard for Substandard Care of Children in Foster Care

10 Jan

Readers of Arlington Parent News are now well aware of how Arlington DHS/CPS mistreats its foster children, and how many of the GALS and the Arlington Family Court judges often act against the best interests of those children — instead feeding the coffers of those that “serve” the foster care industry to the detriment of the foster children.

On December 17, 2015, a US Federal Judge Janis Clark clearly laid out the standard that these entities should be following in order not to violate the constitutional rights of the children in the foster care system.   (M.D. v Greg Abott, USDC Southern District of Texas, Civil Action 2:11-CV-84)    Arlington gets a big “F” under that standard.   Its high time the Arlington County Board to shake up that agency and require it to seriously reform its practices BEFORE it takes in another child and stomps on their constitutional rights.

Here are some hightlights from that opinion:

The Constitution imposes upon the State affirmative duties of care and protection.” Id. at 198-200. These duties arise when the State takes a person into custody, thereby limiting that person’s freedom to act on her own behalf. Id. at 200. Custody, in other words, creates a “special relationship” between the State and that person, which triggers a constitutional duty to provide basic needs. Id.

when the State restrains an “individual’s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty,” the State assumes an affirmative duty to provide basic needs. DeShaney, 489 U.S. at 200

…the Fifth Circuit held that, under the Fourteenth Amendment, the State owes its foster children “personal security and reasonably safe living conditions.” Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004)

…The Fifth Circuit is not alone. With near unanimity, the other circuits have found that states owe a duty of care to their foster children. See e.g., Tamas v. Dep’t of Social & Health Servs., 630 F.3d 833, 846-47 (9th Cir. 2010); James ex rel. James v. Friend, 458 F.3d 726, 730

 ….A foster child’s right to be free from an unreasonable risk of harm “encompasses a right to protection from psychological as well as physical abuse.” R.G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006); see also LaShawn A. by Moore v. Kelly, 762 F. Supp. 990, 993 (D.D.C. 1991)….Moreover, foster children “have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being.” Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996)…Harm, both psychological and physical, can be inflicted in a variety of ways, including neglect, physical abuse, sexual abuse, and psychological maltreatment. “[T]he Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.”

…Foster children need not wait until actual harm occurs before obtaining relief. This has been made most explicit in the prison context, where the right is characterized as the right “not to be subjected to the unreasonable threat of injury.”

….Regional Director Bowman agreed that placing children far from home negatively affects the bonds and connections that children need to be emotionally healthy. Yet 39% of children are placed out of their home region and 60% are placed out of their home county…

…Cross-state moves also impede primary caseworkers’ ability to visit their foster children..

….In addition, separating siblings harms foster children.

…Inappropriate placements also harm foster children.

 …Lastly, placing sexually abused children with other children in foster family homes and foster group homes causes an unreasonable risk of harm…

….Plaintiffs have proven, by a preponderance of the evidence, that DFPS’s policies and practices amount to structural deficiencies that cause an unreasonable risk of harm to all class and subclass members


— Judge Janis Clark