The failure of the child welfare McLawsuits, Part Two

The group that calls itself "Children's Rights" touts its Tennessee McLawsuit 
as a huge success.  The 12-year-old in this photo, obtained by
Nashville television station WTVF, might disagree. You can watch their story here.

By the time the group that calls itself “Children’s Rights” was done with Tennessee, the state was taking away 24% more children than it was when the suit was filed.

 Now the system is in chaos, a family was torn apart for “driving while Black” and a 12-year-old was hogtied in a new makeshift institution.  If this is success, what does it take for CR to declare one of its McLawsuits a failure?

Part one of this post deals with the failure of the massive McLawsuit brought in Texas by the groups calling themselves “Children’s Rights” and “A Better Childhood.”  This part deals with a similar failure by Children’s Rights in Tennessee.

In 2000, the group that calls itself “Children’s Rights” filed one of its McLawsuits -- massive, similar class actions the group has brought across the country for decades -- in Tennessee.  Court supervision didn’t fully end for 19 years.  To read the account on CR’s website you’d think their suit turned a dreadful, failing “child welfare” system into a shining success story.  According to CR: 

In 2017 Jim Henry, former DCS Commissioner, reflected, on the lawsuit’s success: “…[W]e deserved to get a lawsuit. The fact is, we’re a much better system now. We’re better off for it, the kids are better off and I think the taxpayers are better off.” 

I can think of one 12-year-old who might disagree with CR’s glowing assessment.  He’s the boy you can see in the photo at the top of this post, which comes from some outstanding investigative reporting by Nashville television station WTVF; the boy who was hogtied.  You can watch the full story here. 

CR claims that, thanks to its McLawsuit “The use of grossly inadequate emergency shelters and large orphanage-style institutions has ended.”  But just four years later, the Tennessee Department of Child Services, their family police agency (a more accurate term than “child welfare” agency) has opened a bunch of new ones. 

It was in one such place that the 12-year-old was held face down, handcuffed and hogtied – after DCS specifically changed its policy to allow the handcuffing of children in these places. 

Of course, any system can have an isolated failure.  But what’s happening in Tennessee is not isolated.  Just four years after CR declared final victory and got out, story after story after story after story documents a system is in chaos. 

The institution where that 12-year-old boy was hogtied is one of an entire network of new institutions the state opened – because (don’t stop me if you’ve heard this one before) children were sleeping in state offices and DCS was getting bad press about it. 

WTVF reports on what DCS’ own inspector, Brenda Myers, found – and what happened to her:  She wrote a memo documenting the horrible conditions.  She says her boss, the DCS commissioner told her to rewrite it to cover up the truth.  She reluctantly did it – and immediately quit.  Watch the story here. 

As the story notes, DCS came up with a solution to the problem of embarrassing inspections of hideous facilities – they stopped the inspections. 

And remember how, in Texas, Texas public radio reported this about kids in makeshift placements? 

if parents behaved the way [the Texas family police agency] does with [these] kids … multiple judges TPR spoke to said they would remove its kids.” 

WTVF put the same question to the whistleblower in Tennessee: 

NewsChannel 5 Investigates asked, "If you went to a private home and saw conditions like what would you do?"  Myers responded, "We would recommend removal." 

As noted above, these hellhole institutions were created because Tennessee children were forced to sleep in offices.  They were held in offices because there was no place else to put them.  Why is there no place else to put them?  A clue can be found in the case of that hogtied 12-year-old. He was not taken away because he was beaten or tortured or sexually abused.  WTVF obtained an internal DCF memo that said the boy was institutionalized because "mom was unable to care for him and did not have the resources to do so." 

Also in Tennessee, in the midst of having no place to put kids, the Tennessee family police agency rushed to take away the children of parents whose only crime could be boiled down to Driving While Black. 

No surprises here 

You could see it all coming decades ago when CR first brought its Tennessee McLawsuit.  At the time, we simply compared the “Statement of Principles” in the Tennessee settlement to the one in one of the few relatively successful class-action lawsuits against a “child welfare” system, the one in Alabama, and posed a simple question: “If these principles can indeed become reality, which would be the better reality for vulnerable children?” 

CR didn’t just ignore the problem of wrongful removal, CR stepped in and successfully sued to prevent the Tennessee Legislature from acting to curb it in the county where the problem was worst.  And they used some pretty disturbing tactics to do it. 

So it should be no surprise that in 2019, when the lawsuit and the court monitoring ended,  Tennessee took away 24% more children than it did when the lawsuit was filed in 2000.  So it’s no wonder CR’s claims of success don’t always hold up well. 

According to CR: 

DCS has dramatically reduced its historical over-reliance on non-family institutional placements … The percentage of Tennessee children in foster care placed with families has risen and has been maintained at approximately 88 percent. 

Not anymore.  While the national average has gotten better, Tennessee has gotten worse.  As of 2021, the most recent year for which comparative data are available, and just two years after CR declared final victory, 16% of Tennessee foster children were institutionalized – a rate nearly 80% above the national average.  That was before DCS opened institutions like the ones exposed by WTVF.  And Tennessee uses the least harmful form of foster care, kinship foster care, at a rate barely more than one-third the national average. That’s probably one of the worst records in the country. 

Tennessee also illustrates the ongoing disconnect between CR’s excellent public policy work and its lousy McLawsuits.  The public policy arm has done outstanding work questioning things like the mad rush to terminate children’s rights to their parents (a more accurate term than termination of parental rights) to push them into adoptive homes.  But in Tennessee CR brags that, thanks to its litigation, 

DCS is consistently providing more and faster permanent adoptive homes for children in foster care. 

Yes, there’s always backsliding 

Even in those rare cases where good lawsuits lead to real accomplishments, some backsliding is probably inevitable once the court-appointed monitors pack up and leave and the courts let the family police agency off the hook. 

For decades, we’ve cited the lawsuit and subsequent settlement in Alabama as a model. (A member of NCCPR’s Board of Directors was co-counsel for plaintiffs.)  We’ve pointed to a front-page story in The New York Times – but that was 2005.  More recent news stories still show a system that is far less bad than most.  (To be clear: There are no good systems; the continuum runs from bad, to worse, to horrible, to hellscape.)  But there has been backsliding in Alabama.  There’s even another lawsuit – brought by, among others, Children’s Rights – specific to children held in the worst placements of all “residential treatment centers.” 

In New York City we often cite the lawsuit that stopped the city from taking children from parents, almost always their mothers, just because the mothers are survivors of domestic violence.  (NCCPR’s Vice President was co-counsel for plaintiffs in that one.)  That suit never completely stopped the practice – but it curbed it.  What it did not do was stop the New York City family police agency from putting these mothers under onerous, sometimes crippling surveillance.  That’s why anotherlawsuit has just been filed to stop that practice. 

But Alabama remains a significantly less bad system than it was before the lawsuit.  And, battered women in New York City are far less likely to have their children torn from their arms than they were before that lawsuit. 

In contrast, what little progress there may have been in Tennessee – if any - collapsed with breathtaking speed.  

So the real lesson here is: Bring better lawsuits to begin with – so when the backsliding happens it will be slower and take longer to erode the progress.  And every year that progress is maintained is one year that children are safer, both from abuse inflicted by their own families and abuse inflicted by the family police. 

Lessons from other McLawsuits 

There are four CR McLawsuits that have been followed by system improvements.  But correlation is not causation.  In two of the four locations, the McLawsuits got in the way of progress for decades.  

In all four locations, New York City, New Jersey, Connecticut and Washington, D.C. the key to improvement (not success, these are less bad systems) was the same: Sooner or later, sometimes after decades, leaders were named to the family police agencies who said, in effect, to hell with the micromanaging b.s. from Children’s Rights: I’m going to be laser-focused on safely keeping families together.  That shrank these systems to the point that they could make other improvements. 

All four jurisdictions now tear apart families at rates well below the national average, even when rates of family poverty are factored in. (Tennessee, on the other hand, takes children at a rate 20% above the national average.)  So imagine how much progress could be made if CR started negotiating settlements that emphasized reducing needless foster care in the first place.