By MADELINE FOX

A lawsuit filed Friday contends Kansas violates foster children’s civil rights by moving them too often, adding to their trauma and restricting their access to necessary mental health treatment.

The National Center for Youth Law, Children’s Rights and Kansas Appleseed filed the suit against Gov. Jeff Colyer and the heads of the Department for Children and Families, the Department for Aging and Disability Services and the Department of Health and Environment.

The class-action suit alleges the state violated foster kids’ rights by shifting them — some of them more than 100 times throughout their time in care — often from one single-night placement to the next. The suit says that renders kids in care effectively homeless.

“There’s a chunk of the population of abused, neglected and abandoned kids in Kansas for whom the state has no housing at all,” said Ira Lustbader, litigation director for Children’s Rights.  “Kids are rotated through just extreme numbers of placements.”

This process of “churning,” as described in the suit, has kids sleeping “anywhere a bed, couch, office, conference room, shelter or hospital can be found” overnight. Then they’re picked up the next morning and kept in a foster care contractor’s office for much of the next day, often into the next evening.

“Every change in placement a child experiences is a major disruption in that child’s life,” said Michelle Johnson-Motoyama, a professor of child welfare at Ohio State University who’s studied the Kansas welfare system.

She said churning creates a vicious cycle — each new placement adds compounded trauma and attachment issues, which makes it harder for them to stay in a foster home — increasing their moves almost exponentially.

The organizations seek no financial damages. Rather, the suit calls for the agencies to put together a plan to fix the churning and mental health problems, and to see that it’s implemented. A similar suit filed nearly 30 years ago led to the privatization of much of the state’s services for children in crisis.

Ten children, ten stories

The suit details the experiences of 10 children ranging from ages 7 to 17 who have been in foster care anywhere from a few months to nine years. Several have slept in foster care contractors’ offices, including one girl who was discharged from a psychiatric residential treatment facility into a series of one-night and short-term placements that included nights in an office.

One boy has been in more than 130 placements since entering the foster care system in 2012. Lustbader said that based on interviews the organizations conducted with advocates and attorneys across the state, that wasn’t unusual.

“That’s what can happen if you’re thrust into this night-to-night madness,” he said.

A 17-year-old girl described in the suit entered the foster care system in 2007. She was adopted three years later with her siblings into a family where she and her sister were sexually assaulted by their adoptive father and brother. They weren’t removed until 2013. In the five years since, the girl has been moved more than 42 times, including multiple night-to-night and short-term placements.

In one placement, the suit alleges, she was sexually exploited and trafficked. She stayed overnight in the office of a foster care contractor, including once for an entire week.

Churning kids through the system

From April to September of 2018, St. Francis Community Services, the foster care contractor for the western half of the state, had 764 children in one-night placements. Its eastern counterpart had 695 kids stay just one night in a placement.

The suit alleges DCF has enabled churning by letting contractors and child placement agencies waive capacity and sleeping space requirements — such as one home that had 10 children and that was only regulated to keep six kids. DCF approved 98 percent of approximately 1,100 requests to waive requirements for capacity and sleeping space in a 15-month period, according to a 2016 audit report.

The suit alleges that since 2017, DCF hasn’t even required agencies to ask for exceptions. As long as a child doesn’t go to that placement more than once in a week, homes can take on more kids than they are regulated to take without the state needing to sign off.

Under national standards, kids shouldn’t be moved more than 4.12 times for every 1,000 days they’re in foster care.

But according to reviews by the federal Department of Health and Human Services, Kansas hasn’t met that standard since it was set out in 2014. In its most recent fiscal year, Kansas moved kids an average of 8.6 times per 1,000 days, more than double the federal standard, and 30 percent more times than its 2016 average of 6.6 moves.

The suit alleges Colyer and the heads of the three agencies violated foster children’s 14th Amendment rights — which grants equal protection under the law — as well as the federal Medicaid Act.

It alleges Colyer, sued in his official capacity as governor, had the responsibility to make sure agencies followed state and federal law and the ability to reshape the function of agencies to ensure they were looking out for the children in the state’s care.

DCF Secretary Gina Meier-Hummel, the suit says, has “direct non-delegable custodial responsibility” for the state’s children, meaning her office is ultimately responsible for civil rights violations that happen to foster children under the supervision of the state’s foster care contractors.

Lustbader said it was important to make it clear that while DCF has delegated foster care placement to private agencies, the state welfare agency and Kansas Department of Health and Environment and Kansas Department for Aging and Disability Services still have ultimate constitutional responsibility for the state’s children.

“The buck stops with the government agencies responsible for these kids in their care,” Lustbader said. “You can certainly use private providers, but not without accountability.”

Mental health services

The secretaries of KDHE and KDADS are responsible for administering Medicaid and mental health services according to federal and state laws. They also oversee Medicaid waiver programs and operating hospitals and institutions in the state.

All foster children are eligible for Medicaid, which requires mental health screenings for children under the Early Periodic Screening Diagnosis and Treatment provisions of the federal Medicaid Act. Lustbader said under Medicaid, kids in state custody have “absolute access and entitlement” to basic screening, assessments and treatment.

The lawsuit charges that the agencies responsible didn’t meet that requirement.

Data Kansas reported to the federal government in 2016 indicated more than 3,000 foster children, nearly half the number of kids in foster care at the time, were identified as emotionally disturbed.

Changes coming

The lawsuit comes in the midst of a lot of changes coming through Kansas and its child welfare system.

Gov.-elect Laura Kelly will take office in January, and will likely bring with her a new cabinet – including new heads of DCF, KDHE and KDADS.

The foster care system is also bracing for a transition between foster care contractors. KVC and St. Francis, the two organizations that have held Kansas’ foster care and family preservation contracts since 2013, will cede family preservation to two new statewide providers, Florida-based Eckerd Connects and Missouri-based Cornerstones of Care.

TFI, a former contractor and current subcontractor for Kansas foster care, will join KVC and St. Francis as a state contractor for foster care.

Becci Akin, a professor of social work at the University of Kansas, said transitions can be chaotic. She said it’ll likely take 18-24 months after the contracts switch over in July before it’s possible to really judge whether the new providers and other new aspects of the child welfare grants are working.

A task force examining the state foster care system is submitting its final recommendations to the Legislature in January. The recommendations, which include expanding Medicaid, examining the effects of privatization and improving work conditions for social workers, could prompt legislation taking aim at some of the challenges in Kansas’ child welfare system.

Deja vu

The lawsuit echoes a case filed over foster care in 1989. That suit accused the Department of Social and Rehabilitation Services, the precursor to DCF, of failing to protect children. It evolved into a class-action case joined by the ACLU. Its Children’s Rights project has since become an independent nonprofit and is one of the parties suing now.

Rochelle Chronister, who headed SRS, said she’s not surprised Kansas is being hit with another lawsuit. She said the state’s cutting back on preventive measures to keep kids out of foster care is leading to more kids coming in, and hitting an agency that isn’t prepared to handle them.

The new suit, unlike the previous case, is in federal court. Rene Netherton, the attorney behind the earlier case, said it’s more narrow in scope than the one filed nearly 30 years ago. That earlier case focused on not only short-term placements but also worker caseloads, resources and numerous other problems with the foster care system.

Netherton also thinks the circumstances could be better this time around.

“I don’t think the climate could be any better than it will be with the new governor,” Netherton.

Netherton’s suit, and SRS’s failure of several resulting quarterly reviews, prompted the Legislature to privatize Kansas’ foster care system at the behest of then-Gov. Bill Graves.

The first contracts, for six nonprofit providers, began in 1996. Privatization has drawn the ire of some lawmakers, child advocates and birth and foster parents. They say it’s allowed the state to push blame for problems in the system to contractors and shortchange a system starved for resources.

Lori Burns-Bucklew, a Missouri attorney on the suit, says she wants the state agencies to stop treating children’s bad situations like an inevitable consequence of strains on the system.

“I have been ranting, I’ve been pounding the table, I’ve been worrying about these kids being schlepped around from night to night and I’ve been seeing it treated like it’s inevitable fallout from this messed up system,” she said. “I don’t want to let the institutional changes ignore the individual faces.”

Madeline Fox is a reporter for the Kansas News Service. You can reach her on Twitter @maddycfox.