National Center for Youth Law

STRATEGIES

Olivia Y. v. Barbour
also known as Johnson v. Barbour

This class action lawsuit was brought on behalf of 3,000 foster children who are currently in the custody of the Mississippi Division of Family and Children’s Services (DFCS) and the thousands more who are improperly diverted from the system.  Plaintiffs allege that DFCS placed thousands of foster children in danger and at risk of harm, and has left many thousands more to fend for themselves in abusive and neglectful homes.  Pursuant to 42 U.S.C. § 1983, plaintiffs brought equal protection, substantive due process, and procedural due process claims, as well as claims for violation of the Adoption Assistance and Child Welfare Act.

Overview

FILE NO., COURT AND DATE FILED

04-CV-251 (S.D. Miss., Mar. 30, 2004)

CITATIONS

351 F. Supp. 2d 543 (S.D. Miss. 2004); 2006 U.S. Dist. LEXIS 39970 (S.D. Miss. June 5, 2006).

CLEARINGHOUSE REVIEW NO.

CW-MS-0001

ATTORNEYS FOR PLAINTIFFS

Marcia Lowry
Eric Thompson
Tara Crean
Margaret Ross
Children’s Rights, Inc.
330 Seventh Avenue, Fourth Floor
New York, NY 10001
(212) 683-2210
Fax: (212) 683-4015
ethompson@childrensrights.org

Wayne Drinkwater
Melody McAnally
Bradley Arant Rose & White, LLP
One Jackson Place, Suite 450
188 E. Capitol Street
Jackson, MS 39201
(601) 948-8000
Fax: (601) 948-3000
wdrinkwater@bradleyarant.com

John Lang
Christian Carbone
Loeb & Loeb, LLP
345 Park Avenue
New York, NY 10037
(212) 407-4000
Fax: (212) 407-4990
jland@loeb.com

Stephen H. Leech
P.O. Box 3623
Jackson, MS 39207
(601) 355-4013
s.leech@sleech.com

HISTORY AND STATUS

On March 30, 2004, Plaintiffs filed a complaint. Plaintiffs filed an amended complaint on May 17, 2004, after publicity surrounding the initial complaint yielded numerous additional reports of abuse and neglect within the Mississippi foster care system. On November 18, 2004, the district court denied defendant’s motion to dismiss as to the substantive due process claims of the children in state custody.  The court dismissed plaintiffs’ procedural due process claim, equal protection claim, and claims under the Adoption Assistance and Child Welfare Act.

On March 11, 2005, the court certified a class of all children in DFCS custody.  On September 8, 2005, the court granted defendants’ motion for a stay of the litigation for 45 days to allow DHS to deal with the devastation in southern Mississippi resulting from Hurricane Katrina.  The court extended the stay through January 1, 2006, upon defendants’ motion.

On February 2006, Plaintiffs submitted expert reports detailing system failures and the resulting harm to children. In March 2006, defendants submitted an expert report corroborating chronic system failures. Both parties submitted motions for summary judgment, but the Court denied the motions on August 29, 2006.

On March 28, 2007, the parties signed a Stipulated Settlement Agreement in which defendants agreed to no longer contest that the State was violating the substantive due process rights of the plaintiff foster children and a mediator was appointed to help develop a plan to address systemic deficiencies within DFCS. In May 2007, the court approved the parties’ agreement.

On January 4, 2008, the parties subsequently negotiated the Mississippi Settlement Agreement and Reform Plan requiring comprehensive reform. The court approved the plan at a fairness hearing. On June 4, 2008, the parties agreed on the services and plans to be provided to the named plaintiffs of the lawsuit who remain in foster care custody. A court-appointed monitor issued a preliminary status report on October 21, 2008.

In June 2009, the court-appointed monitor released a report on DFCS’s reform efforts during the first monitoring period. The report noted that while DFCS did not meet many of the first year benchmarks, the infrastructure created during the first year along with the new leadership at DFCS should allow for substantial progress during year two of the five-year timetable. Failure to meet year one benchmarks was due largely to delays in appointing new leadership as required by the settlement agreement. The appointment of a new director and hiring of new staff, as part of a budget increase to DFCS, led to progress in the second half of the year.

On May 17, 2011, the plaintiffs filed motion for contempt because of defendants’ failure to comply with settlement agreement, which court denied.  However, the court found that defendants had failed to make progress towards requirements and ordered parties to negotiate to modify settlement, which the court approved on July 2, 2012.  The parties are currently in the process of enforcing the agreement, which is reexamined annually.

In July 2014, the parties agreed to a new plan to move Mississippi towards meeting its court-mandated reform goals. Pursuant to a joint order approved by the court, DFCS agreed to create the position of director for sustainable transformation and an accompanying transformation team to address capacity deficits and improve performance toward meeting the requirements of the Modified Settlement Agreement.

Updated: 11/18/16