Foster Care Pact In Doubt

State Cites High Court Ruling In Seeking End To Federal Oversight

August 05, 2009|By Julie Bykowicz | Julie Bykowicz,

A hard-fought agreement that promised to settle a decades-old lawsuit over the way Maryland treats Baltimore's foster children is in jeopardy as state lawyers now push for an outright dismissal of the federal oversight.

A federal court hearing today was expected to make official a carefully constructed exit strategy in the case, marking a major turning point in the case. It was the first time since 1988, when a consent decree placed the Maryland Department of Human Resources under judicial watch, that the agency and attorneys representing more than 5,000 city children in foster care were in harmony.

They had hammered out an agreement that would have allowed the state to come out of oversight in as little as 18 months if it continued improving - and accurately documenting - the city's historically troubled child welfare system.

But in a last-minute move that shocked the children's attorneys, the state is seeking to bow out of the consent decree in L.J. v. Massinga, citing a June 25 U.S. Supreme Court opinion in an Arizona case that Maryland says directly impacts the state lawsuit.

The justices, in a 5-4 decision in Horne v. Flores, ruled that the courts are prohibited from requiring state agencies to do anything above and beyond what is spelled out in the law, according to the Maryland attorney general's office. Some requirements of the original consent decree and the new exit strategy appear to do just that, state lawyers argue.

"From the department's perspective, our attorney had an obligation to raise this issue with the court," said Nancy Lineman, a spokeswoman for the human resources agency. "We didn't know this case was going to come along and throw a monkey wrench into everything."

The state's request, in a July 28 letter to the judge overseeing the case, delays by at least two months the plan to move the child welfare system out from under federal oversight through requiring specific benchmarks that the children's attorneys say are vital. And it threatens the spirit of cooperation that had developed after years of acrimony between child advocates and the state agency responsible for foster care.

Human Resources Secretary Brenda Donald and all the attorneys involved announced in June that they had an agreement that would lead to a resolution of the lawsuit filed in 1984 on behalf of L.J., a boy who the lawyers said was beaten in his foster home until he had scars on "virtually every part of his body." (Ruth Massinga was human resources secretary at the time.)

The suit expanded over the years to encompass dozens of other horror stories, and the children's attorneys long held that the state seemed to be making no progress toward reforms that the federal court had ordered.

But more recently, the children's attorneys, Mitchell Y. Mirviss and Rhonda B. Lipkin, praised Donald, secretary since 2007, for her commitment to reforms and willingness to take the federal consent decree seriously. The two sides had worked together for about eight months on the exit strategy.

All that was left to do, Donald and the lawyers said in a June 23 editorial board meeting with The Baltimore Sun, was to get U.S. District Judge J. Frederick Motz to sign off on the plan. At the time, Donald called the agreement "a milestone."

The hearing will still go forward today, but Motz also has scheduled a hearing in October on the state's argument about the Supreme Court case.

"We are very disappointed at the two months' delay," said Mirviss, who has represented L.J., now in his mid-30s, and all the city's foster children since 1985. "But we believe and expect that our revised plan will be approved in October."

Mirviss and co-counsel Lipkin, of the Public Justice Center, said they do not believe the Supreme Court ruling has any bearing on the L.J. case. "The Horne facts are diametrically different from the facts we have here," Mirviss said.

In Horne v. Flores, English-as-a-second-language students in Arizona sued over the lack of instruction available to them. In 2000, a federal district court forced the state to allocate more funding for those students. In 2006, the state legislature changed its laws to earmark more money for English language instruction, and lawmakers argued the federal court oversight was no longer necessary.

Arizona's highest court upheld the federal court oversight, but the Supreme Court ruled that the courts did not fully consider all of the underlying issues and sent the case back for further review.

The Maryland attorney general's office, which represents all state agencies, said it will file a motion in early September outlining its argument.

The legal issues will play out in court, but the lawyers involved say there's more at stake: the goodwill they had developed.

Mirviss and Lipkin said they haven't spoken with Donald or Molly McGrath, Baltimore director of social services, since they learned last week about the state's new legal maneuver. Both plaintiffs' attorneys repeatedly expressed disappointment at the turn of events.

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