The Kids Are Not All Right [M.B. v. Howard, No. 18-2617-DDC-GEB, 2021 U.S. Dist. LEXIS 15801 (D. Kan. Jan. 28, 2021)]
Brigid E. Markey | December 13, 2021 | PDF Version (178 KB)
Summary: For years, Kansas’s foster care children have endured dangerous and negligent environments while in the state’s custody. Children have been forced into constant placements, often being shuffled between homes and facilities with little notice. As a result, numerous foster care children have experienced sleeping arrangements in inadequate areas like motels and offices. These constant placements have traumatized the children by exposing them to predators, limiting access to education, and hindering their access to mental health treatments. In 2018, numerous children in the foster care system brought a class action lawsuit against the State of Kansas for its egregious handling of the children’s health and safety. This suit resulted in a settlement agreement that requires Kansas to make strict improvements within its foster care system. However, due to the required massive overhaul of the system and the ongoing COVID-19 pandemic, it remains to be seen whether Kansas will fulfill the conditions the federal court order demands.
Preferred Citation: Brigid E. Markey, The Kids Are Not All Right, 61 Washburn L.J. Online 37 (2021), https://washburnlaw.edu/wljonline/markey-kids-are-not-all-right.
I. Introduction
On November 16, 2018, child advocates filed a class action lawsuit on behalf of all children, present and future, who may find themselves under the custody of the State of Kansas.[1] Prior to the lawsuit, children within Kansas’s foster care system revealed countless traumatizing experiences suffered while under the State’s care.[2] In response to these allegations, the Kansas Appleseed Project sought justice for these children by bringing a lawsuit pursuant to Kansas Statute Section 38-2242(c)(1).[3] Through the lawsuit, the plaintiffs held Kansas responsible for the conditions endured by children within the foster care system.[4] Although the class action lawsuit of M.B. v. Howard settled, the resulting federal court order would change the landscape of foster care children’s placements.[5] However, it seems unlikely Kansas will be able to meet its tremendous goals.
II. Background
A. Case Description
Ten children within the foster care system received egregious treatment while in Kansas’s custody.[6] After experiencing horrendous placements that exposed them to an array of abuse, the children sought legal representation.[7] Through the assistance of the National Center for Youth Law, Children’s Rights, and Kansas Appleseed Project, these ten youths brought a class action lawsuit against Governor Jeff Colyer, the Kansas Department for Children and Family Services (“DCF”), the Secretary of the Kansas Department for Aging and Disability Services, and the Secretary of the Kansas Department of Health and Environment.[8] All of these alleged abuses painted a picture of instability and harm for these children and any child who might enter the Kansas foster care system.[9] The plaintiffs alleged they are unable to stay at schools for meaningful periods of time.[10] Night-to-night placements frequently resulted in children moving from school to school within days.[11] The children were also unable to meet educational standards.[12] Such frequent churning of children from placement to placement causes an urgent need for stability—resulting in children desperately trying to escape the Kansas foster care system.[13]
This egregious treatment endured by the children in the State’s care induced the Kansas Appleseed Project to file the Complaint on behalf of the children.[14] The Complaint claimed that “for at least a decade, [DCF] systematically fail[ed] to protect the safety and well-being of vulnerable children and youth in foster care” by allowing the statewide practice of disruptive housing.[15] The Complaint called for an end to the practice of “churning,” which subjects foster care children to “needlessly mov[ing] from placement to placement more than fifteen or twenty times,” with some children moved “more than fifty or one hundred times.”[16] This “destabilizing cycle” forces children to live “anywhere a bed, couch, office conference room, shelter or hospital can be found...[f]or days, weeks, or even months at a time.”[17] Ultimately, this disruptive housing cycle “effectively renders [children] homeless while in state custody.”[18] The faulty practice of churning forces children into constant upheaval, making them unable to receive consistent treatment—or any treatment at all.[19] For instance, the children endured “shortages, delays, and waitlists for mental health services and treatment” that would address conditions such as bipolar disorder, post-traumatic stress disorder, depression, and attention deficit disorders.[20] If the placements are unstable, the children are unable to receive even the most basic of care from the State.[21]
B. Legal Background.
Under Kansas Statute Section 38-2242(c)(1), Kansas can place children under its protective custody.[22] Accordingly, DCF “always retains the direct legal duty and responsibility for the safety and well-being of children in foster care.”[23] However, Kansas delegated these obligations to others through a chaotic system of contractors.[24] Until 1996, DCF operated without private contractors.[25] The switch likely occurred because Kansas had been able to maneuver and avoid certain payments through the contractors.[26] DCF renewed contracts with private contractors KVC Behavioral HealthCare Kansas and St. Francis Community Services.[27] The contracts task private contractors with the care and placement of children.[28] These contactors then subcontract with other providers.[29] This setup causes the foster care children to change various hands while in the custody of the State.[30] This continuous shuffling of the named plaintiffs formed the basis of the claim that Kansas was responsible for an ongoing deprivation of their constitutional and federal statutory rights.[31]
By bringing the lawsuit pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2), as well as 42 U.S.C. §1983, foster care children were able to form a class action suit against the State of Kansas.[32] This class included the named plaintiffs in the Complaint and “children [statewide] who are or will be placed in foster care in the protective custody of DCF, and a subclass of children who have identified mental health treatment needs.”[33] The plaintiffs alleged the constant placements subjected them to (1) instability; (2) physically threatening environments; and (3) mental and emotional harm.[34] Ultimately, the plaintiffs alleged these dangerous and neglectful situations violated the “affirmative duty under the Fourteenth Amendment” to keep children in the State’s custody “reasonably free from harm and risks of harm.”[35] Until the State discontinues practices that expose the children to harm, it continuously deprives the children of their constitutional rights and liberty interests, such as Substantive Due Process.[36]
The plaintiffs also illustrated how the practice of churning is connected to Kansas’s failure to provide federally mandated medical treatment.[37] Under Title XIX of the Social Security Act, a state that accepts federal funding for Medicaid must provide low-income children with medically necessary treatments.[38] According to 42 U.S.C. §1396d(r)(1)(B), the treatments must meet “reasonable standards of medical and dental practice,” which requires “at a minimum” that children receive certain assessments, exams, tests, and health education.[39] Kansas must provide a comprehensive health plan, regular screenings, diagnostic tests, psychosocial/behavioral health assessments, and any other treatments necessary for foster care children’s health and well-being.[40] The plaintiffs alleged that because of the churning they rarely received initial and/or ongoing screenings, diagnostic services, and other necessary emotional and mental treatments that would alleviate their needs.[41]
III. Court’s Decision
This case reached a settlement.[42] Almost two years after filing the Petition, the State of Kansas agreed to settle with the plaintiffs on July 8, 2020.[43] Reaching a settlement initially seemed unlikely after the parties’ mediator declared an impasse during negotiations.[44] However, negotiations did continue, and the State Finance Council unanimously approved the terms of the settlement agreement.[45]
IV. Commentary
The State of Kansas has shown no interest in moving the issues forward to trial.[46] Therefore, to adequately address the plaintiffs’ concerns, the State must implement practices and procedures to cease churning.[47] The court demanded immediate action.[48] Among the corrective actions promised by the State are (1) improving tracking and reporting of children;[49] (2) ceasing the practice of unsuitable placements;[50] and (3) producing data demonstrating achieved outcomes for the children’s placements.[51] The court ordered these outcomes must be “phased in over 3-4 one-year periods.”[52]
A. State’s Attempts to Address the Court Order
In response to the court order, Governor Laura Kelly signed Executive Order 20-53, establishing an annual report card for foster care children.[53] The report card is one initiative designed to meet the data outcomes agreed upon by the State.[54] The foster care system is implementing other changes to address the stability outcomes, such as increasing funding for foster care prevention, changing providers of foster care, and using new software to better match children with foster care homes.[55]
B. Will It Help?
While Kansas has time to improve its system, it is uncertain how quick or effective the changes will be for foster care children. Given the historical problems plaguing the system and the tremendous work needed to satisfy the court’s order, it is unlikely that the State will be able to make the changes needed to meet the court’s order.[56] DCF continues to struggle with a chaotic system.[57] Although funding has increased to prevent frequent foster care placement, “[l]ack of [s]upervision” is cited as “[t]he most frequent abuse/neglect reason for removal into foster care.”[58] And even more concerning is that the largest group of children placed in the State’s custody are nine years old or younger.[59] They make up over fifty percent of the children in foster care,[60] which is incredibly troubling due to the inherent trauma foster care placement inflicts on a child.[61] With how much Kansas has already struggled to identify and continually treat children already in the system,[62] one is left to wonder how the State will adequately treat this large population of traumatized children who often have no dependable family structure to reunite with.
Aside from the amount and ages of children still entering the foster care system, perhaps Kansas’s greatest challenge to meeting its outcomes is one almost no one could have anticipated—COVID-19.[63] While COVID-19 has devastated education systems nationwide, it has especially damaged Kansas’s foster care children.[64] COVID-19 costs and concerns[65] combined with unreliable foster care providers[66] continue to create dissatisfaction with the foster care system.[67] Most troublingly, foster care children still face the instability of frequent placements.[68] With more children entering the system and spending longer periods of time in it, Kansas continues to fail to meet performance standards.[69] Unfortunately, it seems Kansas has bit off more than it could chew in its promises to improve the lives of vulnerable children.[70]
V. Conclusion
Changes are necessary.[71] While Governor Kelly’s initiatives and executive orders seem promising, foster care children have endured enough to be hesitant about change.[72] The children have been and are currently subjected to the initial trauma of being separated from their families. Additionally, the children are at risk for delayed diagnoses, irregular mental and physical health care treatments, and frequent shuffling of homes.[73] For most of these children, Kansas’s foster care system is an institute of chaos where mental, emotional, and physical wellbeing is constantly jeopardized.[74] Kansas has made efforts to slightly improve education and mental health treatment.[75] However, the underlying issues of instability persist.[76] Complaints continue to be reported, and the State is already heavily burdened with addressing the unprecedented effects of COVID-19.[77] Kansas has a narrow timeframe to meet its outcomes, and with the minimal improvements it has made so far, it appears foster care children may be failed yet again by Kansas.[78]
1. See generally Complaint, M.B. v. Howard, No. 18-2617-DDC-GEB (D. Kan. Jan. 28, 2021) [hereinafter Complaint]; Annette Lawless, How DCF Aims to Find Missing Kids, Takes on New Lawsuit, KAKE (Dec. 12, 2018, 6:12 PM), https://www.kake.com/story/39632877/how-dcf-aims-to-find-missing-kids-takes-on-new-lawsuit?clienttype=generic&mobilecgbypass [https://perma.cc/HD5B-YSKV]. [Return to Text]
2. See generally Complaint, supra note 1. [Return to Text]
3. The Statute provides that “[w]henever the court determines the necessity for an order of protective custody, the court may place the child in the protective custody of” a parent, another person, a youth facility, a shelter, “a staff secure facility,” or “the secretary” of the Kansas Department for Children and Family Services (“DCF”). Kan. Stat. Ann. § 38-2242(c)(1)(A–G) (West, Westlaw through 2021 Reg. Sess.). [Return to Text]
4. See generally Complaint, supra note 1. [Return to Text]
5. See generally M.B. v. Howard, No. 18-2617-DDC-GEB, 2021 U.S. Dist. LEXIS 15801 (D. Kan. Jan. 28, 2021). [Return to Text]
6. See generally Complaint, supra note 1. [Return to Text]
7. See id. at 24–25; see also Kansas Settles Foster Children Civil Rights Lawsuit, AP (July 9, 2020) https://apnews.com/article/75be2df7f84e1921d68afa0f898663df [https://perma.cc/8TGN-68PX]. [Return to Text]
8. Complaint, supra note 1, at 24–25. The children alleged a multitude of abuses, including sleeping in county offices, maltreatment in foster care leading to foster youth homelessness, instances of sexual abuse, and being moved from home to home in a chaotic nature. See id. at 5–18. [Return to Text]
9. See id. at 19–20. [Return to Text]
10. Id. at 34–35. [Return to Text]
11. Id. [Return to Text]
12. Id. at 36. In fact, “DCF self-reported in 2016 that 58.2% of Kansas youth in out-of-home placements for at least a year do not progress to the next grade level, which violates a federal standard.” Id. [Return to Text]
13. See id. at 36. By 2018, DCF reported sixty-three misplaced children, but due to DCF’s failure to monitor the children, these runaways often go unnoticed in the system. Id. [Return to Text]
14. See generally Complaint, supra note 1; see also Kansas Settles Foster Children Civil Rights Lawsuit, supra note 7. [Return to Text]
15. Complaint, supra note 1, at 1. The Complaint also alleged systemic failure occurred through foster care children’s inability to access necessary medical care. Id. at 3. [Return to Text]
16. Id. at 2. [Return to Text]
17. Id. [Return to Text]
18. Id. [Return to Text]
19. Id. Kansas is federally mandated to provide foster care children with “behavioral health screening, diagnostic services, and treatment, including trauma-related screening and diagnostic services.” Id. at 6. [Return to Text]
20. Id. at 3. [Return to Text]
21. See id. at 3–4. [Return to Text]
22. Once the State asserts custody over a child, the child can be placed with the following: (1) “[a] parent or other person having custody of the child”; (2) an unlicensed “person, other than the parent”; (3) “a youth residential facility”; (4) “a shelter facility”; (5) “a staff secure facility”; (6) “a juvenile crisis intervention center”; (7) or “the secretary” of DCF. Kan. Stat. Ann. § 38-2242(c)(1)(A–G). [Return to Text]
23. See Complaint, supra note 1, at 26. [Return to Text]
24. See id. at 25–26. [Return to Text]
25. See id. at 25. [Return to Text]
26. Sherman Smith, Kansas Secretly Withheld $21 Million in Payments to Foster Care Providers, Topeka Capital-J. (May 16, 2020, 9:01 PM), https://www.cjonline.com/news/20200516/kansas-secretly-withheld-21-million-in-payments-to-foster-care-providers [https://perma.cc/W8NT-2X7F]. A non-disclosure agreement and fear of retaliation stopped contractors from publicly addressing the millions of dollars that were delayed or never paid by the State. Id. [Return to Text]
27. See Complaint, supra note 1, at 25–26. The renewals have been an ongoing issue for Governor Kelly from 2018 to 2020. See Smith, supra note 26. [Return to Text]
28. Smith, supra note 26. [Return to Text]
29. See Complaint, supra note 1, at 25–26. [Return to Text]
30. See id. [Return to Text]
31. See id. at 4, 28–30. [Return to Text]
32. Id. at 4. [Return to Text]
33. Id. [Return to Text]
34. Id. at 28, 33, 41. [Return to Text]
35. Id. at 61. [Return to Text]
36. Id. at 61–62. [Return to Text]
37. See id. at 41–61. [Return to Text]
38. Id. at 26; 42 U.S.C. § 1396 et seq. [Return to Text]
39. 42 U.S.C. §§ 1396d(r)(1)(A)(i), 1396d(r)(1)(B). [Return to Text]
40. See Complaint, supra note 1, at 26–28. [Return to Text]
41. Id. at 45–52. [Return to Text]
42. A Win for Kansas Kids Settlement Reached in Federal Class Action on Behalf of Kansas Kids in Foster Care, Kan. Appleseed (July 8, 2020), https://www.kansasappleseed.org/ksfailsfosteryouth.html [https://perma.cc/HJ2X-TR8G] [hereinafter A Win for Kansas Kids]. [Return to Text]
43. Id. [Return to Text]
44. Judy L. Thomas & Laura Bauer, Kansas Foster Care Mediation Stalls; Class-Action Lawsuit Now Continues in Court, Kan. City Star (Mar. 3, 2020, 7:15 AM), https://www.kansascity.com/news/state/kansas/article240810636.html [https://perma.cc/H5SA-X5FV]. The impasse resulted from disagreements between the State and the plaintiffs concerning Governor Kelly’s role in the oversight and responsibility of the foster care system and lawsuit. Id. [Return to Text]
45. Laura Bauer & Jonathan Shorman, Kansas Reaches Settlement Over Lawsuit to Fix State’s Troubled Foster Care System, Kan. City Star (July 8, 2020, 4:55 PM), https://www.kansascity.com/news/politics-government/article243869537.html [https://perma.cc/E2D3-SNBA]. [Return to Text]
46. See generally M.B. v. Howard, No. 18-2617-DDC-GEB, 2021 U.S. Dist. LEXIS 15801 (D. Kan. Jan. 28, 2021). [Return to Text]
47. See A Win for Kansas Kids, supra note 42. [Return to Text]
48. See M.B. v. Howard, No. 18-2617-DDC-GEB, 2021 U.S. Dist. LEXIS 15801, at *12–14. [Return to Text]
49. A Win for Kansas Kids, supra note 42. [Return to Text]
50. Id. This includes placing children in agency offices, hotels, motels, overcrowded housing, withholding medical treatment due to ongoing placement, and ending night-to-night placements. Id. [Return to Text]
51. See id. The ultimate outcomes of placements must be “4.4 moves per 1,000 days in care,” and “addressing mental health and behavioral health treatment needs for at least 90% of cases.” Id. [Return to Text]
52. See id. [Return to Text]
53. See Governor Laura Kelly Signs Executive Order Implementing Foster Care Report Card, Kan. Off. of the governor (July 7, 2020), https://governor.kansas.gov/governor-laura-kelly-signs-executive-order-implementing-foster-care-report-card/ [https://perma.cc/K9BC-PHLY]. [Return to Text]
54. See id. The report card will provide information about the children’s educational data: graduation rates, expulsions, standardized assessment scores, and the number of children enrolled in each district. Id. [Return to Text]
55. Your Complete Guide to the 2019–20 Kansas Foster Care System Changes, KVC Kan. (July 8, 2019), https://kansas.kvc.org/2019/07/08/guide-to-foster-care-changes/ [https://perma.cc/M34L-YU3R]. [Return to Text]
56. See Smith, supra note 26; see also A Win for Kansas Kids, supra note 42. [Return to Text]
57. See Foster Care/Adoption Summary Reports, Kan. Dep’t for Child. and Fams., http://www.dcf.ks.gov/services/PPS/Pages/FosterCareDemographicReports.aspx [https://perma.cc/6C9E-936D] (last visited Aug. 16, 2021). [Return to Text]
58. Id. Only 56.9% of those children placed in foster care have a reunification goal with their families; thus, the issue of achieving stability goals continues to be a daunting task for Kansas. See id. [Return to Text]
59. Id. [Return to Text]
60. Id. 52.8% of children in out-of-home placements are nine years old and under. [Return to Text]
61. Complaint, supra note 1, at 3. [Return to Text]
62. See A Win for Kansas Kids, supra note 42. [Return to Text]
63. See Nomin, Ujiyediin, Kansas Foster Care Providers Say They’ve Gotten Better, but Critics Say They Need to Do Better, KCUR (Feb. 16, 2021, 6:03 PM), https://www.kcur.org/news/2021-02-16/kansas-foster-care-providers-say-theyve-gotten-better-but-critics-say-they-need-to-do-better [https://perma.cc/3ZCT-YWVC]. [Return to Text]
64. See id. “By December 2020, only 16% of children who aged out of foster care had earned [high school] diplomas.” Id. [Return to Text]
65. Id. Foster care children are lacking technology and internet services to complete their educations and therapy effectively. Id. [Return to Text]
66. Id. “Saint Francis Ministries, one of the state’s largest foster care providers” came under fire for mishandling state funds. “Executives at Saint Francis reportedly spent thousands of dollars on luxury purchases like travel and sports tickets.” Id. [Return to Text]
67. Id. Teresa Woody, one of the representatives in the class action suit, claims that “[w]e are continually contacted by people in the system—caseworkers, parents, foster parents. There are still problems with the system . . . [a]nd the goals of the settlement are a long way from being met at this point.” Id. [Return to Text]
68. Id. Foster care children are still being moved at rates higher than the agreed upon “4.44 moves per 1,000 days set by the settlement.” Id. [Return to Text]
69. Id. [Return to Text]
70. See id. [Return to Text]
71. See Smith, supra note 26; A Win for Kansas Kids, supra note 42; Foster Care/Adoption Summary Reports, supra note 57; Ujiyediin, supra note 63. [Return to Text]
72. See Smith, supra note 26; A Win for Kansas Kids, supra note 42; Foster Care/Adoption Summary Reports, supra note 57; Ujiyediin, supra note 63. [Return to Text]
73. See generally Complaint, supra note, at 37–38. [Return to Text]
74. See id., at 38. Prior to the lawsuit, in a statement to the press made in 2018, one of the named defendants, Gina Meier-Hummel, the former Secretary of DCF, admitted that frequent moves are traumatic for children. Meier-Hummel stated that
if [] you are unsure about where you are sleeping, if you are unsure about where you’re going to go to school, if you’re concerned about having to move the next day . . . all of those things create uncertainty . . . and then ultimately lead to . . . mental health issues and perhaps bad outcomes for kids. Id. (alteration in original). [Return to Text]
75. See Ujiyediin, supra note 63. [Return to Text]
76. Id.; see Foster Care/Adoption Summary Reports, supra note 57. [Return to Text]
77. See Ujiyediin, supra note 63. [Return to Text]
78. See generally M.B. v. Howard, No. 18-2617-DDC-GEB, 2021 U.S. Dist. LEXIS 15801 (D. Kan. Jan. 28, 2021); A Win for Kansas Kids, supra note 42; Foster Care/Adoption Summary Reports, supra note 57. [Return to Text]
