R.I. groups appeal dismissal of lawsuit over abuse of children in foster care

By Katie Mulvaney/The Providence Journal
August 13, 2009

The state’s child advocate is asking a federal appeals court to reinstate a lawsuit that alleges widespread abuse of children in Department of Children, Youth and Families care and seeks to overhaul the foster-care system.

Child Advocate Jametta O. Alston and the advocacy organization Children’s Rights brought the suit in June 2007 on behalf of the 3,000 children in state custody. The suit charged that the child-welfare system was underfunded, understaffed and mismanaged and that children were being molested, beaten and, in one high-profile case, killed while in DCYF care.

It named 10 children as plaintiffs and sought class-action status. Alston appointed adults — or “next friends” — to represent the children’s interests in the case because minors cannot bring federal lawsuits on their own. One child was represented by his former foster mother, another by his past school psychologist. A Brown University professor specializing in child maltreatment stood in for the rest.

Senior U.S. District Judge Ronald R. Lagueux in April dismissed the suit. He ruled that Alston and the next friends did not have the authority to proceed because the children were already in the jurisdiction of the state Family Court, where guardians had been appointed. Lagueux said the three people acting as next friends did not have close enough relationships with the children to act on their behalf.

The appeal filed Monday in the 1st U.S. Circuit Court of Appeals, on behalf of 7 of the 10 children, argues Lagueux’s decision deprives the children of their access to federal courts. The appeal asserts that the DCYF practice of shuffling children from home to home itself is responsible for the children lacking a network of stable adults who could act on their behalf by the judge’s standards.

The court also erred, it says, in failing to address the potential conflict guardians appointed to represent the children in state court might have in representing their interests in a federal suit challenging the system itself. The court should have allowed other adults to act as a next friend or could have appointed one itself, the appeal says.

“Children in state custody have a right to be free from harm,” said Susan Lambiase, associate director of New York-based Children’s Rights. Studies have found that Rhode Island had the second highest rate in the country for foster-children being abused, she said.

Children’s Rights has filed class-action lawsuits over child-welfare systems in 14 other states, winning court-ordered improvements in 13 states and Washington, D.C. The Rhode Island suit was brought after the death of T.J. Wright, a 3-year-old beaten to death in 2004 by his aunt and her boyfriend while in DCYF care. It names Governor Carcieri; Jane A. Hayward, former secretary of the Office of Health and Human Services; and DCYF Director Patricia Martinez as defendants.

Kevin Aucoin, DCYF chief counsel, acknowledged that Alston had the right to appeal. The state’s response, he said, will come at the end of August.

The department has made strides in the past two years that include reducing social workers’ caseloads; decreasing the numbers of youth in group homes or foster care; and speeding the process of getting a foster-care licenses, Aucoin said. The changes are intended to place children in the least restrictive environments, he said.

The state will be represented by Attorney General Patrick C. Lynch’s office. “They have a right to appeal and we don’t begrudge it,” his spokesman Michael J. Healey said.

kmulvane@projo.com

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