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Litigation Watch: Foster Children in Massachusetts Denied Legal Relief Despite Judge’s Concerns

7adeeb0758A federal district court in Massachusetts recently denied relief to a class of 8,500 foster children, despite stated concerns about the condition of the foster case system and its ability to serve the children in its care. The non-profit legal organization Children’s Rights originally filed the lawsuit (Connor B. v. Patrick) on April 15, 2010, seeking broad reform, and citing one of the nation’s highest rates of abuse of children in foster care and other persistent and severe problems throughout the Massachusetts child welfare system.1 Filed as a class action, the suit named six child plaintiffs who have been badly harmed in Massachusetts foster care, and charged the state’s Department of Children and Families (DCF) with “violating the constitutional rights of children by routinely placing them in dangerous and unstable situations once removed from their parents’ care and failing to take necessary actions to meet the legal obligation of the state-run child welfare system to ensure the safety and well-being of children in its custody.”2

The case went to trial beginning in late January 2013, which is relatively uncommon for this type of case. On April 30, 2013, after the plaintiffs had presented their evidence, the defendants (the state foster care agency and other state officials) filed a motion for judgment on the record. The basic legal argument in such a motion is that even if all the facts were true, the plaintiffs have no legal theory under which they can win the case. The motion was heard on May 21, 2013, but the court declined to rule on it at the hearing. In an 84-page decision filed on November 22, 2013, the court granted the defendants’ motion.3 Children’s Rights is appealing the decision.

Although it ruled against the plaintiff children, the decision contained many factual findings from the partial trial. Children’s Rights heralded these extensive findings as recognition that “too many kids in DCF foster care fare poorly because of well-identified and long-standing systemic failings. The numerous critical findings made by the court are not surprising, given the substantial evidence we presented at trial.”4

The lengthy written ruling addressed the plaintiffs’ various legal theories, which included the right to substantive due process, the constitutional right to familial association, certain provisions of federal child welfare legislation, and the right to procedural due process.5 The ruling also discussed the national child welfare standards established by the Council on Accreditation (“COA”) and the Child Welfare League of America (“CWLA”), which it said “provide the normative backdrop against which DCF’s challenged practices and policies must be cast.”6 This is significant, as they do not have independent legal status, which the court acknowledged. The decision also provided an in-depth overview of the seven expert witnesses who testified at trial and the nature of their testimony, providing insight into the type of evidence plaintiffs provided at trial to support their legal claims.7

The findings of fact make up the bulk of the written ruling, spanning over 40 pages.8 They cover an incredibly wide range of systemic issues, from concerns about psychotropic medication of foster youth, caseworker caseloads, permanency, and preparation for transition out of foster care.

District Judge William G. Young’s conclusion is unique in its commentary, and remarkable in the attention it pays to painful reality of life as a child in foster care. It is worth reading in its entirety, and needs no follow up:

This is a dispiriting opinion to write. In alleging violations of substantive due process, the Plaintiffs set themselves to climb a virtually unscalable peak. They have failed in the ascent. Nothing is really resolved. The state defendants today avoid the litigation bullet but the stage is set for further costly litigation as all attempts at settlement have failed.

In the process, the Court may have done a disservice to the hundreds of overworked, underpaid, and underappreciated caseworkers and foster home providers whose dedication has never been questioned here. There is, of course, a certain aridity in marshalling the statistics necessary to sustain or refute the class-wide institutional claims made in this case.

Yet this is not a case about statistics but about children — our children — and this much is clear, the flaws noted herein are more about budgetary shortfalls than management myopia. We are all complicit in this financial failure.

When next you bemoan your tax burden, remember that, at that moment, somewhere in Massachusetts there is a youngster who has just been taken from her parents’ home. She is confused, inexpressibly lonely, homesick, and desperately afraid. Because of Massachusetts’ penury, her future is murkier than in most places in America.

Do you care?


  1. Children’s Rights Connor B. Overview: www.childrensrights.org/reform-campaigns/legal-cases/massachusetts/
  2. Id.
  3. Conor B. v. Patrick, Case No. 10-30073-WGY, Findings and Rulings (U.S. District Court, District of Massachusetts, Nov. 22, 2013) (“Findings and Rulings”).
  4. MA Department of Children and Families Failed to Comply with National Standards, State and Federal Requirements and its Own Internal Policies, Federal Judge Finds, Press Release, Children’s Rights, November 25, 2013.
  5. Findings and Rulings at 2.
  6. Id. at 8.
  7. Id. at 9-14.
  8. Id. at 15-58.
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