EFFORTS AT REFORM

STATE OF TENNESSEE

PART 1

 

 

The system for processing neglected and abused children was often the all-to-familiar police-court-social services-shelter home shuttle service. Due to the speed and frequency with which these children entered the process, the system took on the characterization of a revolving door.

 

Marvin Burt and Ralph Balyeat

CES study authors, 1977

 

 

The reforming discourse in Tennessee in the late 1980s and early 1990s was not so much about the evils of fragmentation as it was about the excesses, both humanitarian and fiscal, of having too many children in custody and of treating them poorly while they were in custody.

 

Eugene Bardach

The Brookings Institute, 1998

 

 

 

THE STATE OF TENNESSEE

ONCE A MODEL FOR THE NATION

 

In a study sponsored by the Urban Institute during the early 1970s, it was found that children were often inappropriately entering state care. Child welfare services in Tennessee consisted of a hodgepodge of different agencies that were described as fragmented and lacking in coordination.

 

Perhaps among the best indications of how many children could be averted from inappropriate placement in foster care is suggested by an early diversion program established in Nashville-Davidson County, Tennessee. Professor of social work Duncan Lindsey describes what typically happened when children entered the system:

 

Once in, the bureaucratic door closed behind them, and they found it hard to get out. Bureaucratic inertia suddenly asserted itself. Procedures had to be followed. Forms filled out. Hearings held. Interviews. More forms. No one wanted to take responsibility for releasing children back to a possibly dangerous home environment. The burden of proof shifted from the agency, which, in its view, had acted correctly in removing the children, to the parents who must now prove definitively why their children should be allowed to return home. The system designed to serve children and families had lost sight of its mission.[1]

 

As a result of this study, and through a joint initiative between federal, state and local government, the Comprehensive Emergency Services program was established, the first objective of which was to “reduce the number of dependency petitions filed and the number of children entering into they system by screening out those cases where a petition was not justified.”

 

Through a combination of screening, coordination and provision of services, remarkable results were obtained.

 

As a result of the CES program, the number of dependency petitions dropped sharply—from 602 before the program started to 226 two years later. “This was achieved largely by screening the number of petitions sworn out and averting or preventing the inappropriate placement of children in care,” notes Lindsey.

 

What is even more remarkable is that the number of cases coming to the attention of the system increased from 770 to 2,156 during the course of the program—an increase of 180 percent. Thus, while the number of potential entrants increased threefold during the course of the program, the number of actual admissions into care dropped by two-thirds.

 

The number of children removed from their homes and placed into care declined from 353 to 174, a decline of about 50 percent. The number of children placed in residential facilities was reduced from 262 to 35, a decrease of more than 85 percent. Significantly, the number of children under six who were admitted dropped from 180 to zero.

 

But diverting placement would prove to be futile if the child showed up again due to continuing abuse or neglect. This did not appear to happen. The number of children for whom petitions were initially filed and who turned up again by the end of the following year due to abuse or neglect declined from 196 to 23.

 

The history of this remarkable program finds its roots in early 1970, with a comprehensive analysis of the social services needs of local governments in Tennessee.  In March of 1971, the Urban Institute published the results of its analysis in a book entitled Options for Improving the Care of Neglected and Dependent Children, characterizing the existent Nashville program of services as being fragmented.

 

“The system for processing neglected and abused children was often the all-to-familiar police-court-social services-shelter home shuttle service.  Due to the speed and frequency with which these children entered the process, the system took on the characterization of a revolving door,” explain Marvin Burt and Ralph Balyeat, authors of the follow-up study conducted of the CES program.

 

The demonstration program came about because it was recognized “that emergency protective care systems in most communities, where existent, were frequently uncoordinated, fragmented, and dysfunctional. Often, neglected, dependent, and abused children were overlooked; uprooted unnecessarily from familiar surroundings; subjected to the same treatment as juvenile offenders (and, often, adult misdemeanants); or passed disruptively from one service agency to another while decisions were being made on their futures.  Even in many of the better-organized municipal, county, and state systems, otherwise humane and effective procedures were not in effect at night, on weekends, or on holidays, times when they are most needed.”

 

A program’s cost effectiveness is often a major consideration to policymakers. In this respect, too, the program provided remarkable results, as the study clearly explained:

 

The incremental difference in cost between the old system and the new system was a net savings of $68,000, an efficient use of resources in view of the increase in effectiveness.  A solution was achieved in which effectiveness was increased while costs decreased.

 

“The success of the CES system has caused the Children’s Bureau of the Department of Health, Education, and Welfare to establish in Nashville the National Center for Comprehensive Emergency Services for the express purpose of disseminating information about the system and encouraging its adoption in other states and communities,” the study concludes.[2]

 

The National Center for Comprehensive Emergency Services presented its final report in 1976.  Described were those activities carried out through Fiscal Year 1975-76, such as the devising and distributing of materials, including a Community Guide, and a Training Guide.  By this time, the Center had completed technical assistance visits in 31 states.  The report describes the Center planning and conducting site visits, answering information requests, and distributing materials and information to all states.[3]

 

As of early 2005, according to the popular Google search engine, the only references to the National Center for Comprehensive Emergency Services to be found on the Internet are from the Division of Rare and Manuscript Collections at Cornell University Library, where the 2nd edition of the 1974 Comprehensive Emergency Services: Community Guide is deposited in Box 6, Folder 19, of the University’s archives alongside Comprehensive Emergency Services: Training Guide which sits in Folder 20.  The discard list of the Jim Dan Hill Library at the University of Wisconsin displays a copy of the 1976 Final Report, as well as the 1976 edition of the Community Guide, for but the cost of postage to any interested library.

 

The initial enthusiasm of the Children’s Bureau notwithstanding, the remarkable successes the program attained remain largely unknown.  Today in Tennessee, legislators, attorneys, and a variety of “experts” and “advocates” continue on the torturous and continued path of reform.

 

 

CURRENT STRUCTURE

 

The Department of Children’s Services was created by the Tennessee legislature on May 21, 1996.  The former Department of Youth Development and the Department of Finance and Administration’s Office of Children’s Services Administration were combined along with certain functions from the Departments of Human Services and Health concerning the welfare of children.[4]

 

The new state agency was created “following five years of administrative reform efforts.”  Through the merger of services that had been scattered among several departments, it was hoped that improvements would be obtained in the coordination of services for children and families. 

 

The innovations envisioned at the time included the development of “Child and Family Teams,” relying on “Resource Management Groups” to locate “placement resources” for children entering non-relative foster care.  Some critics of the venture voiced concerns that the new structure wouldn’t hold any one person in DCS truly “accountable” for the care of the child, fearing that despite everyone’s best intentions, children would get lost.[5]

 

 

PRIOR EFFORTS AT ORGANIZATIONAL REFORM

 

Prior to 1996, Tennessee operated under the model of a “Public Welfare Department,” the second most common form of organization in public welfare organizations, and one that developed out of traditional organizational structures over the past 40 years.  Within this model, social services (i.e., child and adult protection) are organized in the same agency as income maintenance programs, the Institute for Public Policy explains.

 

Advocates for this organizational model argue that it allows for better coordination between income maintenance and social services, while critics argue that the focus and attention is drawn away from children’s issues to those of managing income maintenance programs and the staff associated with these programs.  This organizational restructuring came about during the early 1980s, as part of an earlier effort at “reform” in Tennessee, as the Institute explains:

 

In the early 1980s a consensus developed among the senior management that the nature of the social service job and the difficulty of retraining good CPS staff required a differential pay grade for social services and income maintenance staff. Concern over morale in the income programs, however, prevented any action by the agency through the terms of three separate commissioners, until one commissioner, in the late 1980s, decided to accept the resistance in the income programs in an effort to equitably address the Social Services salary issues.

 

This framework was abandoned in 1996 in favor of that of a “Children’s Department,” an organizational model which advocates claim provides “a clarity of mission” which “places an ‘exclusive focus’ on the interest of children and youth.”  As for the five years of administrative reform efforts that preceded the shift in models, the Institute explains:

 

The reform efforts that preceded the creation of the Children’s Department were called the “Tennessee Children’s Plan.” Under this rubric, the Commissioner of the Department of Finance and Administration (F&A), traditionally the most powerful commissioner in Tennessee state government, directed all these departments to restructure their services and the administration of children’s services under the leadership of his office. The budgets of all were combined into a single budget account. Departmental specific service contracts were rewritten to serve children of all departments. Successful efforts were undertaken to shift existing state costs for children’s services to the federal government. The F&A leadership began to manage many day-to-day operations of the departments, making decisions on expenditures down to individual child level and approving some activities of individual front-line workers.

 

“Will it all be worth it?  It is ‘too early to tell,’” said a DCF staff member.[6]

 

In September of 1998, a report was issued by a Review Team established under the terms of the settlement of a lawsuit initiated by the Tennessee Justice Center.  The Review Team provided a concise history of Tennessee’s efforts to reform its child welfare and juvenile justice systems throughout the 1990s.

 

In 1991, Tennessee consolidated most of the funding for children and families under the state's Department of Finance and Administration, under the “Tennessee’s Children's Plan.” The Children's Plan was “a major statewide effort to both control costs and improve the quality and quantity of services available for child welfare and juvenile justice,” explains the report.

 

In 1993 the state applied for, and subsequently received, a waiver from the federal government to implement a five year managed care demonstration project. On January 1, 1994, Tennessee ceased operating a traditional Medicaid program and began “TennCare,” a system of managed care that made health care available to approximately 400,000 previously uninsured people as well as to 800,000 Medicaid-eligible residents of Tennessee.

 

The state’s Department of Health’s Bureau of TennCare, with a budget of about 3.5 billion dollars, manages TennCare. The Bureau contracts with managed care organizations (MCOs) to deliver necessary medical care to TennCare enrollees. In 1996, TennCare initiated its “Partners Program” to manage behavioral health services.

 

At the same time that TennCare was introducing the Partners Program for behavioral health, the state underwent a major reorganization of its child welfare and juvenile justice programs. With the leadership of Governor Sundquist, who was elected in 1994, Tennessee consolidated services for children and youths committed to the state into one state agency.  The Department of Children Services.[7]

 

 

TENNESSEE’S CHILDREN’S PLAN:

PAVING THE ROAD TOWARD DISASTER

 

The Tennessee Children’s Plan was established by Executive Order No. 58, June 29, 1994.  And it was the “success” of TennCare that served as a model for all that was to follow.  If indeed the proverbial road to disaster is paved with good intentions, the intentions among the movers and shakers behind the Tennessee Children’s Plan could not have been more benign.

 

The Tennessee Children’s Plan “represents that state's commitment to reducing out-of-home care and particularly institutional care,” explains Ira Cutler, former Director of Planning and Development at the Annie E. Casey Foundation.

 

The Tennessee Children’s Plan stressed “improved gatekeeping and assessment/case planning processes, improved system management, maximization of federal funding, and reallocation of funds toward community-based alternatives and family preservation programs—all within the state-operated service delivery system.”  Cutler continues:

 

Tennessee has collapsed a number of funding sources, from a number of state agencies, into a single children's fund account and has explored a number of innovative rate setting and managed care processes under TennCare, its alternative to Medicaid.[8]

 

“The reforming discourse in Tennessee in the late 1980s and early 1990s was not so much about the evils of fragmentation as it was about the excesses, both humanitarian and fiscal, of having too many children in custody and of treating them poorly while they were in custody,” writes Eugene Bardach.  As for the political maneuvering behind the Children’s Plan, Bardach explains that the Director of Finance and Administration, David Manning

 

was a personal friend of the Republican Governor and had strong ties to leaders of the Democrat-controlled legislature as well.  He is said to be a man of great intelligence, drive, and charisma. From his position at Finance and Administration controlling the state’s dollars, and in conjunction with allies at the top of the state Health Department, he created TennCare, a medicaid-managed care plan, one of the first in the nation.  Manning decided to make almost as big a revolution in children’s services.  He called it the Children’s Plan and in February 1991 presented it to the legislature’s Select Committee on Children and Youth.

 

“The logic of managed care was to be exported, to the extent possible, to this client population as well.  Funds hitherto used by the separate departments for custodial services would be pooled into a single account,” Bardach explains, and the “key managerial component in the whole system” was to be the twelve regional Community Health Agencies that had been created in 1989 as part of the TennCare initiative.

 

“At the top management level in Nashville, chaos was more the norm than the exception.  Manning had conceptualized the desired system well but had not detailed the steps needed to move it there.  Committees and meetings proliferated.  Manning’s attention shifted to other matters, and the process of redesigning the new system turned into a fiasco.”

 

By late 1994, fiscal pressures and dissatisfaction with the administrative structure at the state level led legislators to consider created a new Department of Children’s Services.  A year later, this was accomplished, but “throughout 1996 a simultaneously creative and focused but—inevitably—chaotic effort was underway to make the transition,” Bardach explains.[9]

 

Thus, through an experimental program with managed care, the Department of Children’s Services was born.

 

 

INNOVATIVE PROGRAM HOLDS SOME PROMISE

 

Tennessee apparently was on the right track during this turbulent period, at least with respect to one novel program intended to aid in the reunification of children with their families, as the General Accounting Office explains:

 

Tennessee's Wraparound Funding Program allowed caseworkers to use state funds to provide services that removed economic barriers to reunification.  These services were not typically associated with traditional reunification services and prior to this program were not allowable foster care expenditures.  Examples include home or car repairs, utilities or rent payments, and respite care.  According to a report summarizing the program, during one 6-month period in 1995, the program provided services to 1,279 children.  A state Department of Children’s Services official estimated that had these children remained in care as long as the average child in foster care, the state would have incurred an additional $700,000 in state and federal foster care maintenance payments.[10]

 

Would that such innovative programs be expanded toward the end of maintaining children in their own homes, rather than in foster care.  However Tennessee has an abysmal track record in terms of the provision of services to families in crisis.

 

 

A PROGRESS REPORT

 

On July 1, 1997, the Tennessee Comptroller of the Treasury released a financial and compliance audit of the newly formed agency.  Among the audit’s highlights: “Duplicate Payments of Approximately $2.1 Million Made to Vendors,” “No Formal Procedures for Identifying and Collecting Overpayments to Foster Care and Adoption Assistance Parents and to Vendors,” “Controls Over Processing of Medical Payments Are Inadequate,” “Untimely Federal Reporting,” “Controls Over Disbursements Were Weak,” “Status Changes for Foster Children Are Not Processed Timely,” “Procedures Related to Funding Payments With Title IV-E Grant Funds Need Improvement,” “Social Security Administration Trust Fund Accounts Should Be Reconciled With Accounting Records Promptly.” 

 

Lack of data system integrity was also found, as were problems with the transfer of and controls over various revenues.  Duplicate payments to vendors were common, and the Department had failed to follow standard processing procedures for contracts.

 

Among the more significant findings was that there was a $1.7 million “difference” in the balance shown on children’s Social Security Administration and Supplemental Security Income trust funds between one system and another.  The Comptroller explains how these funds are used by the agency: 

 

Children’s Services receives the Social Security Administration (SSA) and Supplemental Security Income (SSI) benefits on behalf of children in state custody. These funds are held in trust for the children and are used to supplement the cost of caring for them. These funds are accounted for by recording payments received in the individual trust fund account for each child.

 

“For the last two years, Children’s Services has been entering the old manual DHS trust fund records into a computer data base. The data base should aid them in resolving the $1.7 million difference and the lack of any interest that should have been credited to each child’s account.  However, this process had not been completed as of December 1996 and, therefore, the difference has not been reconciled,” the report explained. [11]

 

 

THE NOT-FOR-PROFIT VENTURE

 

Jabneel, Inc., overseen by Gary and Billie Rich, operated about a half-dozen homes for abused and disadvantaged children in Tennessee.

 

They were forced to close in 1997 after reports that adolescent male residents had repeated—and sometimes forced—sex with each other. Five boys aged 13 and 14 since have pled guilty to rape charges.

 

The items which were to be sold at auction included office equipment, a complete commercial kitchen and 19 vehicles including service trucks, a 40-foot motor coach, eight passenger vans and a 1991 Mercedes 420 SEL.

 

“I've been to all the sales this year, and I've not seen anything like the scope of this auction,” said auctioneer Chris Headrick.

 

The non-profit, which received payments of $2 million per year to care for children, also divested itself of real estate. Records show that it transferred land to Child and Family Services of Knox County for $130,000.[12]

 

 

REVENUE MAXIMIZATION:

A CLOSER LOOK

 

State child welfare agencies have a long and well-documented history of using federal dollars intended to help children and families to instead promote their bureaucratic expansion and survival, and a recent audit of the Department of Children’s Services conducted by the Tennessee Comptroller of the Treasury provides a remarkable window through which to gain a better understanding of how federal dollars are expended.

 

“In three instances, employees of the department were put on administrative leave with pay while investigations into alleged wrongdoing were being conducted. These employees remained on administrative leave with pay for 1,247 hours, 1,316 hours, and 1,285 hours, for an average of eight and a half months each,” the audit revealed. 

 

Reviews of investigation and personnel files revealed that in all three cases “sufficient evidence existed early in the investigation either to remove the employee from administrative leave with pay or to dismiss the employee.”  Two of these employees were eventually terminated, while the other was reassigned to different job duties.

 

One employee was investigated for falsifying her employment application by not including a previous employer.  As it turned out, her previous employer had criminally charged her with grand larceny.  Another employee had been investigated for misappropriation of state funds and misuse of state property. This employee was eventually terminated for gross misconduct.

 

Incredibly, federal dollars were being used to pay the salaries of two of the suspended employees over the entire course of their administrative leaves.  As the audit explains:  

 

Two of the employees’ salaries were paid with federal program funds. Since these employees were not benefiting the program during the investigation, it does not seem reasonable that the department continued to use federal funds to pay their salaries. The programs charged are Title IV-E Adoption Assistance ($487.98), Title IV-E Foster Care ($10,163.16), Title IV-B ($776.33), Social Services Block Grant ($8,313.29), and Title XIX (TennCare) ($18,072.76).

 

Among the many other revealing findings in the audit:  Federal guidelines “were not understood or disregarded” when equipment was purchased with Title IV-E funds, resulting in $11,977,359 in questioned costs; purchasing procedures were “circumvented” with no internal controls in place during the purchasing and installation of federally funded equipment; the department did not report an instance of employee fraud to the Comptroller of the Treasury as required by law.

 

In addition, Children’s Services “inappropriately requested and received reimbursement from TennCare” for ineligible children secured in locked facilities; the Department has outstanding overpayments of at least $1,225,133.76 made to foster parents, adoption assistance parents, and vendors; and the Department “did not uphold its fiduciary duty to properly administer and account for the trust fund accounts of children receiving federal benefits.”[13]

 

 

OTHER REVENUE SOURCES

 

In addition to diverting federal money from the Adoption, Foster Care, Social Services, and Medicaid programs to cover operating expense such as employee salaries, child welfare agencies routinely use Supplemental Security Income (SSI) to offset the costs associated with foster care placement, establishing themselves as “representative payees,” ostensibly on behalf of the children in their custody. 

 

The practice has frequently led to litigation, as child advocates and attorneys Bruce Boyer and Martha Matthews explain, a federal lawsuit filed in Tennessee in 1994 led to a settlement under which the Social Security Administration, which disburses SSI payments,

 

agreed to abide by its hierarchy of preferred payees, and to investigate specific allegations of misuse of funds by representative payees.  The same settlement also included an agreement by the state agency to provide notice to family members whenever it sought to be appointed as a child’s representative payee.

 

The Tennessee case provides another window on how child welfare agencies operate to maximize revenue.  Plaintiffs in the case asserted that the state child welfare agency had “falsely stated” that the named plaintiff, Linda Cornett, had no parent or other relative who could serve as her payee, when the agency’s own records showed that she had a grandparent who was closely involved in her care.

 

Linda was placed in a residential facility by the child welfare agency, which failed to pursue her eligibility for special education, instead deducting the cost of her care from her lump sum benefit award.  The Tennessee Justice Center, which filed the case, also filed a complaint with the Office of Civil Rights alleging discrimination on the basis of disability, since Linda was not allowed to enroll in public school, and was forced to pay for her own residential program.

 

As the case progressed, it came out that when the actual cost of a foster child’s residential care exceeded the Medicaid reimbursement, the agency often simply paid the excess from the child’s SSI funds, rather than challenging the provider’s excessive rates.[14]

 

On September 4, 1998, one day before Linda Cornett's 19th birthday, the Tennessee Justice Center once again filed suit on her behalf against the Tennessee Department of Children's Services, the Department of Education, and the Department of Health, charging that DCS had misused Cornett's Supplemental Security Income; held Cornett in state's custody past her 18th birthday without a review process; then abruptly released Cornett without proper notification, review or a transition plan for her re-entry into the community.

 

DCS had wired a payment totaling more than $9,000 to Linda Cornett's account, but no information was sent to her concerning the money, and still missing was $4,000 to $5,000 of her SSI benefits, according to Lenny Croce, an attorney with the Justice Center.

 

“The state sees this as a way to stretch the dollars, but they're using these kids as cash cows,” said Croce.

 

Croce said that some benefits should have been set aside in a designated account with tight restrictions as to how the money was spent.  “In this case the state commingled accounts and didn't comply with the rigid restrictions on the designated account funds,” he explained.

 

In addition, the Justice Center maintained that after keeping Cornett in state’s custody eight months past her 18th birthday, DCS abruptly released her without proper notification or review.  “They didn't give her a reason, no notification of termination, no discharge plan, nothing set up for her after she got out to help her make it on her own, or semi on her own, or anything,” Croce explained.[15]

 

 

HEALTH CARE NEEDS IN FOSTER CARE UNMET

MANAGED CARE IN TENNESSEE

 

After eighteen months of negotiations prior to the filing of a class action lawsuit in federal court challenging the adequacy of children’s health services, the Tennessee Department of Health and the Department of Children's Services entered into a Consent Decree for Medicaid-Based Early and Periodic Screening, Diagnosis and Treatment Services with the Tennessee Justice Center in March of 1998.

 

Among the terms of the Consent Decree was that an expert review process would be created to “assess the adequacy of the present system to address the medical, dental and behavioral health needs of custody children and those at risk of coming into DCS custody.”

 

In September of 1998, a report was issued by the Review Team.  The impact of the TennCare program on foster children in particular is devastating, as the report explains:

 

Dissatisfaction with the TennCare system on a number of fronts is leading more than one pediatric office to cut back on participation. The pediatrician for one of the children in the random study told the reviewer that he had recently made the decision to nor accept any new TennCare patients, citing the difficulties in receiving payment.

 

One of the health care providers “informed the reviewer that their physicians had recently decided to stop accepting foster care children into the practice because of difficulties with TennCare.”  The report continues:

 

A range of private providers and DCS staff representing all the DCS teams in three regions were unanimous in describing how managed care has resulted in a drastic reduction in the quantity and quality (and timeliness) of behavioral health, medical and dental services in all the counties in the three regions.

 

The report concluded that: “For custody children, managed care routinely denies services which would be considered medical neglect if a parent failed to obtain them for his or her child.”[16]

 

 

CONTINUING EFFORTS AT REFORM

 

In 1998, the Tennessee State Comptroller's office rolled out a Performance Audit that revealed that many of the 11,000 children in state foster care were being neglected by the system, and that the foster care system was not effectively measuring its own performance. 

 

With each renewed effort to bring about reform of the child welfare, foster care, and juvenile justice systems in Tennessee, the systems either worsened, or at best remained plagued by the same problems, as the Comptroller explained:

 

The 1992 Department of Human Services performance audit reported that counselors were not making contacts with foster children as often as required and that some foster homes had more than six children. Although the Foster Care Program has since been transferred to the Department of Children’s Services, these problems continue.

 

Among the audit’s recommendations: “The department’s central office should monitor caseworkers to ensure they are complying with the department’s policy concerning monthly contacts with all children in foster care. The central office should also track the number of children in each foster home to ensure field staff comply with the department’s policy limiting to six the number of children per foster home. The department should investigate any unusually large numbers of children per home for possibilities of fraud, duplicate payments, etc.”

 

Among the report’s additional findings: “Central office management has inadequate information on the Foster Care Program,” “Department staff do not always comply with policies requiring monthly visits with foster care children and limiting the number of children per foster home,” “Neither the department nor the grantees track the effectiveness of some early intervention programs,” “The department lacks formal, consolidated guidelines and procedures for dealing with wraparound funds,” and “The Division of Internal Audit had insufficient staff to perform needed reviews of the department’s facilities and programs.”[17]

 

In response to the Audit, department officials promised to require case work reviews at the regional level, install a new statewide computer system to help solve information gap problems, and implement a “gate-keeping system” to keep track of children and families served in preventive programs.[18]

 

By January of 1999, word had spread that Children’s Rights, Inc., was talking to children’s advocates, gathering evidence for a possible lawsuit against the state’s child welfare system.[19]

 

 

ENTER STAGE RIGHT:

THE CHILD WELFARE LEAGUE OF AMERICA

 

“After the threat of the lawsuit, the state hired Carolyn Hill of the Child Welfare League, an organization that regularly works with states trying to reform their programs. She says DCS is working hard to improve the system, and that lawsuits are not the best way to do that,” commentator Tom Bearden explained during a PBS NewsHour broadcast covering the events in Tennessee.

 

“It's clear that there are systemic reforms needed. It's also clear that the department is well on their way in addressing those. There are more effective means to bringing about the system reforms that we’d like to see, whether it’s Tennessee or any other state,” said Hill.[20]

 

Carolyn Hill works as a “field consultant” with the Child Welfare League of America, and this was neither her first clash against Children’s Rights, Inc., nor the first time she had been hired by a child welfare agency as a consultant.

 

In a 1990s Children’s Rights lawsuit filed in conjunction with the American Civil Liberties Union against the Philadelphia Department of Human Services, Hill was brought in by DHS as part of the defense team.

 

In November of 1998, Children’s Rights released a comprehensive report described as the first independent review of Philadelphia’s child welfare system. The city's foster children were languishing in foster care for years, bouncing from one unstable home to another, often without proper health care.  According to the report, children in foster care supervised by DHS spent an average of nearly four years in the system before they were adopted, returned to their families, or aged out of the system.

 

“It seems like the agency has given up on these children,” said Marcia Robinson Lowry, director of Children's Rights, Inc.  The nonprofit organization based its findings on a review of 660 foster children in the DHS system between May and November 1997.

 

The report cited the experiences of 15 foster children, identified by pseudonyms. Among the narratives was that of Sondra, a 15-year-old awaiting her 16th foster care placement. She was sexually abused 33 times in one year at one DHS-supervised home, the report said.

 

The 170-page Children's Rights report was to have been the centerpiece of the case had it gone to trial.

 

DHS in turn countered with its own report, saying that the research was skewed, and that it covered only a small percentage of some 50,000 cases during the period studied.

 

The DHS report purportedly involved a larger survey than the Children’s Rights study—1,650 cases, including children who had been adopted or reunited with parents and whose cases had been closed.

 

As a result, it showed an average stay in foster care of 13 months, compared with four years for the Children’s Rights report. The DHS report indicated that 75 percent of the children studied returned home within one year, and that 75 percent of children placed temporarily in foster care had “relatively stable” experiences, moving only once or twice.

 

The case finally settled, and the settlement “provided for the release of both the Children’s Rights report and the DHS rebuttal, written by the Child Welfare League of America, a nonprofit organization that works with welfare agencies,” Philadelphia Inquirer staff writer Monica Yant explained.

 

“The Children's Rights/ACLU report was written by Theodore Stein, a child welfare expert at the State University of New York in Albany. The DHS/Child Welfare League of America report was written by consultant Carolyn Hill, former child welfare commissioner of Kansas,” wrote Yant.[21]

 

Hill has considerable experience in damage control, having worked for the Kansas Department of Social and Rehabilitation Services for 21 years, moving up from the ranks of social worker to that of Commissioner of the Division of Children and Youth for SRS in Topeka—a post she had held from 1991 through January of 1995, when she left her job to work for the Child Welfare League of America.[22]

 

Bob McKeagney, vice-president of program operations for the Child Welfare League of America, says that connection to the field was a big reason he asked Ms. Hill to work for the League. In her six years, he said they worked together consulting with many states, as well as the Canadian province of Saskatchewan.

 

“Her experience in the field is one of the things I thought separated her from other people on a national basis,” Mr. McKeagney said. “People could tell right away she'd done child welfare work, and that she understood the connection between policy decisions and practical decisions in the field. You need that connection.”[23]

 

Hill’s experience in the field includes a lawsuit in her home state of Kansas, which had been successfully litigated by Children’s Rights, Inc. 

 

The state’s system was found to be a disaster. After the settlement, the state’s Legislative Division of Post Audit conducted frequent reviews to see how SRS was progressing.  Study after study reported abject failure. A 1997 audit revealed SRS's stunning inability to adhere to the most rudimentary principles of child protection practice. 

 

The Department’s compliance with a total of 78 requirements was assessed. Based on the reviews, auditors concluded that the Department was in compliance with only 11 (14%) of the 78 requirements.  These were not mere technical requirements; rather they were ones that directly impacted on the safety of children. 

 

“During this period, the Department conceded it wasn’t in compliance for the period covering July 1996 through June 1997 with the 12 requirements related to ascertaining the safety and status of children who have been abused or neglected,” auditors wrote. 

 

These requirements included such basic matters as “properly assessing and screening abuse or neglect cases, investigating allegations within established deadlines, interviewing all the appropriate parties during an investigation, reaching appropriate findings about whether abuse or neglect likely occurred, and determining whether a pattern of abuse exists in each case.” 

 

“These requirements have the most direct effect on protecting children from the threat of physical or emotional injury,” the auditors explained.

 

“During this period, the Department conceded it wasn’t in compliance for the periods covering July 1995 through June 1997 with the 39 requirements related to appropriately managing the cases of children in its custody,” the report continued. 

 

These requirements included: developing a case plan for providing services that meet the child’s and family’s needs, housing children in appropriate placements, periodically reviewing and revising the case plan to reflect the current needs of the child and families, involving parents and other appropriate parties in those reviews, arranging for appropriate visits between foster-care children, parents, siblings, and social workers, and notifying the courts of the child’s progress.

 

“These requirements help ensure that children are placed in appropriate settings, that children and their families receive the services they need, and that children don’t languish in foster homes when they should be reunited with their families or adopted,” the audit explained.[24]

 

Hill found greener pastures in 2001, becoming the CEO of Starkey, Inc., a for-profit Wichita-based company that provides housing for those with developmental disabilities.[25]

 

 

THE CWLA’S INVOLVEMENT IN TENNESSEE

 

The League describes its contractual relationship with DCS as one of being “Partners in Permanency,” and the CWLA explains on their web site that:

 

Beginning in January 1999, consultants for CWLA's National Center for Consultation and Professional Development began an exciting collaborative project with the Tennessee Department of Children's Services (DCS) to assess the agency’s foster care and adoption programs and develop plans for strengthening the state’s service delivery system to improve outcomes for children and families.[26]

 

Among the many services offered by the CWLA’s National Center for Consultation and Professional Development is “Crisis Management.” And indeed, a crisis of major proportions was exactly what DCS had on its hands.

 

Experienced child welfare professionals understand the potential risks associated with providing programs and services to vulnerable children and their families. At times, even the best child welfare organizations may face a crisis—a child death, staff malfeasance, licensing restrictions, administrative problems, or financial shortfalls. CWLA member agencies and other child welfare organizations can rely on NCFC consultants to provide effective, immediate, onsite consultation services,” the CWLA explains on its web site.[27]

 

“Coping with Child Welfare Litigation” is another professional service offered to child welfare agencies.  “Litigation is a current reality in many child welfare agencies. In almost half of the 50 states, child welfare agencies are operating under the supervision of a court that has assumed oversight in response to litigation claims that the public agency has failed to protect abused and neglected children. Every day, public and private agencies face the risk of becoming deeply enmeshed in the process of ongoing litigation and court supervision,” the CWLA explains.[28]

 

The Child Welfare League of America provides the service through its “National Center for Field Consultation,” through which its consultants “work directly with administrators, supervisors, and workers to evaluate an agency's strengths as well as its vulnerability to litigation.”[29]

 

The National Center for Field Consultation works with agencies, providing consulting staff that “work directly with the agency's administrators and attorneys in responding to litigation and in serving as expert witnesses.”[30]

 

Was the CWLA’s National Center called in to assist DCS in derailing the lawsuit? A draft copy of the Department of Children’s Services issued “John H. Chafee Foster Care Independence Program Annual Progress and Services Report” bears the dual imprimaturs of the Child Welfare League of America and its National Center for Field Consultation.[31]

 

To say that DCS had something of an image problem would be an understatement.  In commenting on the Child Welfare League of America’s numerous field interviews, the federal Administration for Children and Families noted in its Child and Family Services Review that stakeholders “frequently noted that many members of the community have highly negative views of DCS.”[32]

 

The National Center for Field Consultation also offers a “Marketing and Customer Service,” What makes an agency “stand out” according the to Center?  “The effective promotion of an organization's programs and services has never been more important,” the web site explains.


The Center “assists agencies in examining specific strategies for successfully marketing a child welfare agency or service, including the development of a marketing plan, customer service techniques, and the language of sales.”[33]

 

The “Strategic Planning” service offered by the Center “provides consultation and technical assistance to public and private child welfare organizations,” and based on “the unique needs of individual organizations,” The National Center for Field Consultation “designs strategic planning projects that may be concentrated during a few days or continue over a period of years,” the CWLA explains.[34]

 

The press was running critical coverage, the legislators were clamoring for reform, even as Children’s Rights, Inc., was threatening a legal action.  In DCS’s case, time was running out. And with the aid of the Child Welfare League of America, the agency bought three years of time.

 

 

THE TASK FORCE INVESTIGATION

 

A task force investigation was ordered by Tennessee House Speaker Jimmy Naifeh, who appointed the task force in January 1999, after an Audit by the state comptroller’s office revealed that DCS didn’t have the means to properly track children in its care.  Representative Page Walley was appointed by House Speaker Naifeh to lead the five-member task force.

 

Department of Children's Services Commissioner George Hattaway, through his spokeswoman Jeni Stephens, said his Department “is excited the legislature wants to help us solve this problem.”[35]

 

In May of 1999, the task force submitted legislation aimed at preventing children from spending more than 30 days in a temporary shelter, a common occurrence in Tennessee. The legislation also required the Department of Children’s Services to submit an annual report to the General Assembly for the following three years.

 

The bill should be on the House floor in the next few days, said task force chairman Page Walley.

 

Walley said the hearings showed the department is understaffed in both case managers and attorneys and more accountability is needed.  The amendments recommended by the task force would cost about $16 million. If the funding were approved, the state would also get $7 million more in federal money.

 

“It's pay me now or pay me later,” Walley said.[36]

 

 

THE THREE-YEAR PLAN

 

The results of the task force investigation were a series of recommendations released in May of 1999. The task force recommended that DCS should implement the recommendations set out by the Child Welfare League of America.  The three-year-long reform plan developed by the Child Welfare League of America for the Department of Children’s Services had been approved.

 

The task force also submitted legislation that required DCS to submit an annual report to the General Assembly for the following three years, detailing information about the children in foster care, the case managers who work with them, and the department attorneys. The legislation also required the Department of Children's Services to report to the House Committee on Children and Family Affairs and the Select Committee on Children and Youth no later than January 15th of each year for the next three years, beginning on January 15, 2000.[37]

 

DCS Commissioner George Hattaway said his Department was supportive of the changes recommended by the CWLA and the task force.  “We feel like these recommendations will solve the problems that have been identified,” he said.[38]

 

What the legislation didn’t solve was the problem of rampant malfeasance.  In early 2000, DCS employee Kim Krugh’s allegations of negligence, falsification of documents, and children’s cases being closed without investigation, particularly in the Memphis area, led State Senator Jo Ann Graves (D-Gallatin) to call for a Tennessee Bureau of Investigation probe into DCS. 

 

In an odd twist, Krugh was informed in a faxed memorandum from DCS Commissioner George Hattaway that she was to be suspended without pay, as she was negligent in not reporting the matters through the proper chain of command.

 

Her suspension was to begin after she finished conducting regional training for DCS employees.  Krugh said she tried to resign from her training position, but was told she would have to continue conducting the training classes.

 

“I think it is funny they are requiring an employee they have said is negligent to conduct training classes for other employees,” she said.[39]

 

 

the COMPTROLLER’S AUDIT

 

In May of 2000, the Comptroller of the Treasury produced another audit of the Department of Children’s Services, which in many respects mirrored the findings of earlier audits.[40]

 

But there were some new findings, among the more salient of which was the agency’s used of Medicaid through the State’s TennCare program:

 

As noted in the prior two audits, and despite management’s concurrence with the findings, Children’s Services continued to request and receive reimbursement from TennCare for medical expenditures on behalf of children who were not eligible for TennCare because they were in locked facilities. In addition, the current audit revealed that Children’s Services is also billing for other categories of ineligible children. This includes children not in state custody; children in state custody but on runaway status; children in the Hometies program; individuals over the age of 21; and children under the age of three.

 

Audit after audit made the same findings, yet the Department’s handing of the reported matters only worsened over time, as the report explained:

 

As noted in the five previous audits, from July 1, 1993, to June 30, 1998, Children’s Services still has uncollected overpayments due from foster care and adoption assistance parents. As of June 1999, the department’s records indicated an outstanding accounts receivable balance for these parents totaling $1,195,745.66, a decrease of only $29,388.10 (2.5%) since June 1998. In addition, Children’s Services continued to overpay foster care and adoption assistance parents during the audit period.

 

“As noted in the five previous audits . . . case managers did not update the Children’s Plan Financial Information System… when changes in status for foster children occurred, resulting in overpayments,” the audit explained.

 

“As noted in the five previous audits . . . Children’s Services did not have sufficient controls to ensure that disbursements were properly processed. Problems included lack of supporting documentation and insufficient approvals,” the report continued.

 

“As noted in the five previous audits . . . the Department of Children’s Services issued many duplicate payments and overpayments to vendors for goods and services provided to children,” the report reiterated.

 

To be sure, not all of the findings were repeated over the course of five annual audits.  That the department had entered into several “improper and ineffective employer-employee relationships” with community foster care and Child Protective Services providers was repeated only from the prior year’s audit.

 

And there were some newer findings as well, among them that: “The department did not have adequate documentation in each child’s case file showing the services provided to the child, the progress of the child, or the movement of the child.”

 

By this time, it became apparent that the department had become more sophisticated in its use of federal revenue maximizations schemes, as well as in the garnishment of parents’ wages, Veterans Administration benefits, Miners and Railroad benefits, to offset the costs of foster care placement—even as the agency consistently failed to properly administer the funds, much to the detriment of the children the agency was intended to serve:

 

As noted in the prior audit, the department did not uphold its fiduciary duty to properly administer and account for the trust fund accounts of children receiving federal benefits. The trust fund accounts consist mainly of money received from the U.S. Social Security Administration (SSA) for supplemental income, as well as payments received from parents and from U.S. Veterans Administration, Miners, and Railroad benefits. The money in each individual’s trust fund account may be used to reimburse the state for expenditures made by the state on behalf of the child.

 

 

THE LEGAL CHALLENGE

 

In early 2000, the advocacy group Children’s Rights, Inc., filed a lawsuit against the agency, alleging that the state had endangered thousands of children under its care by failing to provide appropriate placements and services to wards of the state and their families.[41]

 

Advocacy lawsuits such as these “provide an opportunity for the public to learn more about the operations of the child welfare system. The impact of ‘official’ neglect upon individual children is made clear in the complaints in these cases, which generally describe in detail the failures of the system to help, and many cases its propensity to harm, children and families,” explains Bill Grimm, staff attorney with the National Center for Youth Law.[42]

 

The Civil Complaint in the case of Brian A. v. Sundquist was filed on May 10, 2000, in U.S. District Court, Middle District of Tennessee, Nashville Division under U.S. District Court Judge Todd J. Campbell.

 

The highly detailed Civil Complaint asserted, among many other things, that: “The experiences and presently unmet needs of the named Plaintiffs are merely examples of the Defendants' systematic failure to fulfill their legal responsibilities to children in DCS custody and are representative of the Defendants’ failures to comply with the law with respect to the Plaintiff children.”  The Complaint continued:

 

They illustrate Defendants’ long-standing pattern and practice of illegal actions and inactions, and their deliberate indifference and failure to exercise professional judgment regarding, the health, safety and welfare of the Plaintiff children. Any previous attempts Defendants have made to remedy these systemic failings have been superficial, insufficient and ineffective. Children are still not receiving services to which they are legally entitled and that meet applicable legal and reasonable professional standards.[43]

 

The point that over a decade of legislative tinkering, including committee meetings and task force hearings, had produced little more that the usual barrage of interim studies and final reports, which in turn produced few tangible results, was hardly lost on the Plaintiffs, who alleged:  

 

The grave conditions faced by children in DCS custody and Defendants’ systemic failings have been extensively and repeatedly documented for over a decade. Efforts dating back to the 1980's to improve DCS's predecessor agencies resulted in the 1991 “Foster Care Task Force” as well as the “Children's Plan.” Numerous recommendations and initiatives created by these efforts have never been implemented, and many subsequent reports through the present have repeatedly identified the same problems.

 

The Civil Complaint addressed a wide array of system deficiencies, including multiple placements, lack of proper facilities, failure to provide for the educational and mental health needs of children in care, the placement of children great distances from their homes, racial disparities in placement, and unreasonable delays in the adoption process.  Problems were identified in the areas of casework, management, training, in data maintenance and retrieval, and in virtually every other aspect of the system’s operation.  And, in many instances in which family reunification as an exit from foster care may be appropriate:

 

DCS too often fails to take reasonable steps to evaluate whether reunification with the family is an appropriate goal, and foster children and their birth parents are not provided with services necessary to facilitate the prompt reunification of their families whenever safe and appropriate, as required by law and reasonable professional standards. Additionally, Defendants routinely fail to provide child-sibling visits and other family support services for children in DCS custody, which are also required by law and reasonable professional standards.

 

On July 31, 2000, A Motion to Dismiss was filed by the defendants on a number of grounds, including that Tennessee had no constitutional duty to protect the children in its care, and that the federal courts should abstain from exercising jurisdiction.[44]

 

The state argued that Governor Don Sundquist and DCS Commissioner George Hattaway could not be held liable for the conditions in foster care, and asked U.S. Magistrate Joe Brown to dismiss the lawsuit.[45]

 

On October 26, 2000, the state's Motion to Dismiss was rejected by Judge Campbell, who “ruled overwhelmingly in favor of plaintiffs, upholding all of plaintiffs’ claims with the exception of one predicated on the Americans With Disabilities Act.”[46]

 

 

HEARING DEMANDS REFORM

 

In April 2001, hearings were held by the State House Committee on Children and Family Affairs to review a state audit that found that some foster children had not been visited by a caseworker in months.  DCS must resolve continuing problems by the following year or face drastic consequences, including the possible dismantling of the department, one lawmaker said.

 

“We've got to do something,” said Committee chairwoman Rep. Carol Chumney (D-Memphis). “The situation is getting critical.”

 

Chumney and another senior lawmaker said their patience is wearing thin, and that they will only wait until next year, when the three-year DCS improvement plan expires.  “This is where the rubber meets the road,” Chumney told senior DCS officials. “I don't know if we'll have to put your department back under another department or what.”

 

DCS officials have said that they inherited massive mismanagement and financial problems from other departments, but they have worked hard to reduce the problems.

 

“There are a lot of people we have gotten rid of who didn’t care about the children,” DCS Commissioner George Hattaway said. “Now I think we have lots of very, very dedicated people.”

 

Commissioner Hattaway said his agency was improving as fast as possible, urging lawmakers to stick to the three-year recovery plan.  “You cannot fix a system that has been sick for 20 years in 365 days. Hopefully, we can fix it in three years,” he said.[47]

 

In May of 2001, Tennessee settled the class-action lawsuit brought by Children’s Rights, Inc.  The state pledged to spend at least $30 million over the next five years, although people familiar with the settlement said some of the reforms DCS has promised to make will cost untold millions more.

 

“I think this is groundbreaking, both nationally and for Tennessee foster care,” said Ira Lustbader of Children’s Rights, one of the lawyers who negotiated the settlement. He said it’s the first settlement of its kind that requires a state to follow specific reform timetables.

 

“'The state is to be commended for settling this lawsuit and making a commitment to getting reform under way as soon as possible,” Lustbader said. “Tennessee's foster children have waited a long time to get to this point.”

 

The settlement came even as DCS entered the third year of the three-year “improvement plan” devised by the Child Welfare League of America, and followed in the wake of repeated audits critical of the agency’s ability to manage children in its care.[48]

 

 

THE SETTLEMENT

 

The terms of the settlement are a model of clarity, and the core principles it sets forth are entirely consistent with the consensus among the majority of experts in the field of child welfare. The settlement’s provisions clearly represent the best practices available for both children and their families, given the current state of knowledge in the field.  Among the principles set out in the agreement:

 

The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible. However, child welfare decision-makers must have the professional capacity to make determinations as to when making efforts to preserve the biological family, or leaving the child with that family, is neither safe for the child nor likely to lead to an appropriate result for the child.

 

After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.

 

Foster care should be as temporary an arrangement as possible, with its goal being to provide a permanent home for the child as quickly as possible. In making the determination about what plans and services will best meet this goal, the child's interests must be paramount.

 

The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private contractors to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.

 

All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.

 

Many other specific issues were addressed at great length, such as the use of seclusion, isolation, physical restraint, and the overuse of psycho-tropic medications on foster children. 

 

Children in foster care would no longer be allowed to be placed in jails or other detention facilities because there was no other appropriate placement to be found.  Children would no longer be placed great distances from their homes, unless their needs were so exceptional that there was no other alternative. Siblings would be kept together whenever possible, and foster care workers would visit the children in care.

 

Every aspect of the child welfare system’s operations was detailed, from the first report to DCS, through the investigation by Child Protective Services, through the child’s subsequent placement in care.  Strict timetables were established as to how many foster children could wait—and for how long they may wait—before being either reunified with their families, or placed for adoption.

 

The issues of caseworker recruitment, training, and retention were addressed, as were caseworker and manager qualifications.  Caseloads would be reduced, and quality control programs established.  A “Technical Assistance Committee” would monitor progress, helping DCS along the way.  Few experts in the field could argue that anything less than a model program had been designed.[49]

 

 

THE JUVENILE COURT JUDGE

 

“Although child welfare agencies regularly ignore the juvenile court’s orders, judges rarely hold the agencies in contempt,” explains Bill Grimm, staff attorney with the National Center for Youth Law.[50]

 

The child protection industry’s disdain for oversight, whether it be legislative, administrative, or judicial, is amply illustrated by the bench warrants issued by Juvenile Court Judge Floyd Davis ordering all employees of the Franklin County Department of Children’s Services arrested when a custody ruling of his decree wasn't immediately implemented.

 

Officers were instructed to go to the Children’s Services office and “arrest any worker in the building,” said Dorothy Buck, a DCS attorney.  Three people were charged with custodial interference.  There weren’t any other arrests because many DCS workers left the building after receiving word of the warrants.

 

“The judge arrested (the DCS employees) for not turning over a 2-year-old child to parties he gave custody to,” Buck explained.[51]

 

Just as individual caseworkers vary considerably—ranging in quality from the well intentioned and ineffectual to the outright corrupt—so do individual juvenile court judge vary considerably from one jurisdiction to another.  And while judge Davis may provide the exception in one area, Tennessee judge David W Lanier provided the exception in another.  As the 6th Circuit U.S. Court of Appeals describes it:

 

Lanier served as an elected chancery court judge in Dyer and Lake Counties, Tennessee, where he also served as a juvenile court judge. He had jurisdiction over divorce proceedings, as well as over child custody and support matters.

 

[V. A. A.] first met Lanier in September 1990, when she applied for a secretarial position in his judicial chambers. [She] alleges that during the interview Lanier threatened her with granting her parents custody of [her] daughter if she did not comply with his sexual requests, after which statement he physically and sexually assaulted her by forcing her to perform oral sex. After this incident Lanier offered [her] a job, which prompted her to return to his chambers a few weeks later. During this second encounter Lanier assaulted her once again.

 

Lanier followed up on this second incident with a campaign of threatening and harassing phone calls to [V. A. A.’s] home. [She] alleges that Lanier stalked her, harassed her with obscene phone calls, continually threatened to take custody of her daughter away from her, and physically threatened her for a period of one year.

 

[L. D. G.] worked directly under Lanier's supervision at the Chancery Court. She alleges that, as he had done with [V. A. A.], Lanier repeatedly threatened her with the loss of her job and with stripping her of legal custody of her children if she did not comply with his sexual requests. Lanier sexually assaulted [her] and raped her in his chambers. He also stalked and harassed [her] with the purpose of influencing her then impending testimony before the grand jury that ultimately indicted him and at his subsequent criminal trial.

 

[L. G. C.] worked at city hall, directly across the street from Lanier's office. While her divorce and custody case was pending before him, Lanier enticed her on several occasions to meet with him socially, and to come to his office to discuss her case. When [she] finally acceded to meet Lanier in his chambers, he raped her. As he had done with the other two plaintiffs, he subsequently harassed her over the telephone and stalked her on repeated occasions. Lanier sexually assaulted her on one other occasion.

 

When the three women filed suit against him, Lanier responded with a motion to dismiss “advancing a variety of incoherent arguments as to why plaintiffs' claims should be dismissed and affirmatively defending on the ground of judicial immunity.”

 

“Lanier dedicates only two pages of his lengthy and largely incoherent brief to the issue of immunity and simply asserts that he is entitled to it,” the Court of Appeals explained.

 

Thankfully, the Court of Appeals ruled against Lanier, saying the sexual assaults were outside the realm of judicial conduct subject to immunity.  “A ruling to the contrary would create a legal fiction beyond the pale of reason,” the Court concluded.[52]

 

Leaving aside the issue of the sexual assaults raises the question of just how many other juvenile court judges in Tennessee may produce “rambling and incoherent” decisions regarding children and their families.  By no means is it suggested that Lanier’s case typifies juvenile court judges in the state, however his case does raise some serious concerns as to the quality of oversight provided over the courts.

 

 

AGENCY HEAD RESIGNS

 

In March of 2002, George Hattaway, the Commissioner of the Department of Children’s Services, resigned from state government after more than 30 years of service.  Before being named the first DCS Commissioner when the Department was created in 1996, Hattaway had served as the Commissioner of the Department of Youth Development.

  

Hattaway had also served on the National Advisory Council of Executives for the Child Welfare League of America, and it was during his tenure at DCS that the CWLA was contracted by DCS.

 

As for his retirement plans, he will be moving to Florida, and will be consulting with the Child Welfare League of America on juvenile justice issues, said DCS spokesman Stephen Hines.

 

The Governor and the former agency head bid one another fond farewells through prepared press releases.

 

“George is someone who recognizes that Tennessee's children are its most valuable and most precious resources,” Governor Don Sundquist said in his prepared statement. “He has played a vital role in ensuring that the children of our state are protected and are given a healthy start in life.”

 

“Since the day he took office, the governor made it a top priority to improve services for children in the state of Tennessee,” Hattaway in turn said in his prepared statement.

 

“As a result of the governor’s focus, we’ve seen tremendous progress in this area in the past six years. It has been a true privilege to work with him in this effort.”[53]

 

 

THE NEW COMMISSIONER

 

Hattaway was replaced by Page Walley, whose tenure lasted from March of 2002 through January of 2003.  Walley was now at the helm of the very agency for which he had sponsored the legislation to create in 1996. 

 

He thereafter went on to become the Commissioner of the Alabama Department of Human Resources, having been named its new head by Alabama’s Governor Bob Riley on December 17, 2003.

 

Walley’s biography on the Alabama Department of Human Resources states that while he was Commissioner of the Tennessee Department of Children’s Services, he “helped lead the Department to national recognition as a model of keeping children out of custody and serving them in or near their family.”[54]

 

Throughout his short tenure, Walley managed to maintain a low profile, generally keeping his name out of the press by leaving the task of responding to DCS crises to Department spokespersons.

 

 

ANOTHER AUDIT

 

Although it was released a few days after Hattaway’s departure, the letterhead dated March 14 that accompanied the Comptroller of the Treasury’s latest financial and compliance audit of the Department was addressed to Hattaway, among others.  The actual findings of the report should by now be familiar.

 

As noted in the prior four audits, Children’s Services continued to request and receive reimbursement from TennCare for medical expenditures on behalf of children who were not eligible for TennCare because they were in locked facilities. In addition, as noted in the prior two audits, Children’s Services is also billing for other categories of ineligible children. This includes children not in state custody, children in state custody but on runaway status, and children under the age of three.

 

“As noted in the five previous audits, journal vouchers used to record expenditure and revenue transactions between state departments were not always processed promptly in accordance with Finance and Administration Policy 18,” the report continued.

 

“As noted in the seven previous audits, Children’s Services still has uncollected overpayments due from foster care and adoption assistance parents,” the report went on.

 

“As noted in the prior three audits, the Department of Children’s Services did not have a reasonable system to determine medical treatment costs associated with providing services to children in the state’s care,” the report explained.

 

“As noted in the prior three audits, the department did not perform reconciliations related to Social Security trust funds and did not return funds to the Social Security Administration timely,” echoed the report.

 

“As noted in the prior two audits, the department did not have adequate documentation in each child’s case file showing case manager contact with the child, family, or other individuals,” said the report.[55]

 

 

WALLEY SEES IMPROVEMENT

 

Confronted by reporters about the findings in the audit, the latest DCS Commissioner Page Walley said that this was “a vast improvement” from the audit findings of the previous year, which showed that $12 million had been improperly spent.

 

Walley said the 10 negative findings in the audit were down from 14 in 2000, and down from 24 in 1998, adding that the problems noted in the audit were not as severe as those identified in preceding years.

 

DCS was also faulted in the report because caseworkers were not documenting visits with children in the state’s electronic database. In 32 of 116 case files reviewed by auditors, there were substantial gaps in time between documented visits, ranging from 35 days to 560 days. 

 

Walley told reporters that the Department’s review of paper documents showed that children were receiving the proper number of visits, although workers were not recording the visits electronically.

 

In at least one audit finding, Walley said DCS was waiting to be told by the state Department of Finance and Administration whether it needed to fix the problem.  Auditors had faulted DCS since 1993 for not recouping overpayments to foster care and adoption assistance to parents, to the tune of $1.2 million.

 

The state was reviewing whether it would be cost-effective to find the parents, garnishee their wages, or take other actions, Walley said.[56]

 

 

Continue to Part 2

 

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Last updated February 5, 2005