Judge Says He Intends To Approve Foster Plan

But Delays Decision To Weigh Effect Of High-court Case

August 06, 2009|By Julie Bykowicz | Julie Bykowicz,julie.bykowicz@baltsun.com

A federal judge said Wednesday that he intends to approve a carefully constructed settlement agreement in L.J. v. Massinga, a decades-old case over the treatment of Baltimore foster children, but he delayed his decision to consider the state's new argument that the long-standing court oversight should end altogether.

U.S. District Judge J. Frederick Motz called the exit strategy, crafted over eight months by Department of Human Resources officials, state attorneys and lawyers representing the city's more than 5,000 foster children, "not only fair but commendable."

Under the agreement, to come out of federal oversight, the state would have to document improvements to the city's child welfare system for 18 months, something the children's attorneys say provides a vital check on a long-dysfunctional department.

But a U.S. Supreme Court opinion issued June 25 indicates that a federal court might not have jurisdiction to approve the new exit strategy - or enforce the 1988 consent decree, according to lawyers for the Maryland Attorney General's Office.

In that Arizona case, Horne v. Flores, the justices held in a 5-4 decision that lower courts did not fully consider state law and policy changes when they ruled that federal oversight was still necessary in a case where English-as-a-second language students had sued over the lack of instruction available to them.

A federal judge forced the state in 2000 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 sent the case back for further review.

The Maryland attorney general's office believes that the Supreme Court's ruling in Horne vs. Flores prohibits federal courts from requiring state agencies to do anything above and beyond what is spelled out in the law. Some requirements of the original consent decree and the new exit strategy appear to do just that, state lawyers argue.

State lawyers said they were ethically required to bring Horne to Motz's attention and are not trying to maneuver a way out of the consent decree. They plan to file their motion early next month, and a hearing is planned for October.

Washington lawyers made a similar argument in a hearing last month in the district's own foster care case, LaShawn A. vs. Fenty.

In court documents, the District of Columbia attorney general argued that "Horne reiterated that courts must take a flexible approach to motions addressing [consent] decrees. ... In applying this flexible approach, courts must remain attentive to the fact that federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate federal law."

Attorneys there are awaiting a federal judge's ruling.

In the Maryland case, Motz said he had "no idea" how he will rule on the motion raising the Horne issue. He said that state lawyers had a "professional responsibility" to make their argument, but understands "the plaintiff's view that they're pulling the rug out from under them."

Motz acknowledged the Supreme Court case posed "a last-minute difficulty," but he urged the state and child advocates to continue working together as they did on the agreement. "I hope the good will will not be dissipated," Motz said.

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