Discussion of sampling methodology and findings of
the research of Trudy Festinger.
Adapted from L.J. BY AND THROUGH DARR v. MASSINGA
699 F.Supp 508 (D.Md. 1988)
MOTION FOR PRELIMINARY
INJUNCTION
In their motion for a preliminary injunc-
tion and accompanying memorandum plain-
tiffs allege, inter alia, that, before and
after the filing of this action in December
1984, "some [foster] children continue to
receive brutal treatment in foster homes in
which they are placed by the defendants,"
and "substantial numbers of children do
not receive basic medical care and treat-
ment for disease and disabilities." Plain-
tiffs contend that the continued acts and
omissions by the defendants violate plain-
tiffs' rights under the Constitution and fed-
eral foster care law. This Court is asked
to order the defendants to administer the
Baltimore foster care system in compliance
with federal statutory and constitutional
law by enjoining plaintiffs from allowing
inadequate homes to remain in the foster
care system; failing to provide proper
medical care; and by requiring prompt re-
porting of complaints of abuse and neglect
to the appropriate authorities.
In defendants' response to plaintiffs' mo-
tion, defendants contend that they have
acted vigorously to make substantial im-
provements in the Baltimore foster care;
that plaintiffs cannot demonstrate that de-
fendants acted with deliberate indifference
to plaintiffs' rights; and that plaintiffs'
proof reveals, at moat, isolated incidents of
past exposure to harm. Defendants sup-
port their opposition with thirteen doc-
uments purporting to demonstrate im-
provements they have made or are attempt-
ing to make in the foster care program.
The contentions advanced by plaintiffs
concerning irreparable harm to foster chil-
dren can be grouped into four categories:
(a) instances of neglect and abuse re-
vealed through random case sam-
pling;
(b) inadequate medical care;
(c) absence of protection afforded Code
517 children; and
(d) failure to undertake adequate and ef-
fective measures to address deficien-
cies in the system in the Baltimore
City Foster Care Program revealed
by the Harris Task Force in Septem-
ber 1984.
The Court will discuss plaintiffs' motion
within the above categories.
(A)
Instances of Neglect and Abuse
Revealed Through Random
Case Sampling
Plaintiffs base their allegations of wide-
spread, systematic omissions and failures
by defendants, in part, on a study under-
taken at their request by Dr. Trudy Fes-
tinger. Dr. Festinger chairs the Depart-
ment of Research of the School of Social
Work at New York University and has
studied how caseworkers assess adoptive
applicants, foster care agreements between
departments of social services and foster
parents nationally, and the effectiveness of
court supervision of children in foster care.
Dr. Festinger has published ten studies and
lectured about foster care issues and re-
search methodology. She serves on the
New York State Board of Social Welfare.
Plaintiffs' study was accomplished
through the review of individual foster care
case records maintained by the defendants.
Dr. Festinger reviewed files and the foster
care policies of the Baltimore City Depart-
ment of Social Services (BCDSS) to formu-
late the study. She also selected and
trained casereaders and on-site supervisors
and monitored the case reading.
The case reading focused on children
who had been placed in foster care from
January 1, 1983 to April 30, 1986. Two
criteria determined which files were read:
(1) the child could not have been placed in
care out-of-state nor in a purchase care
facility during the relevant time. period;
and (2) a child had to have been placed in a
foster home for at least 60 days.
The four thousand (4,000) children repre-
sented by the Legal Aid Bureau in Child in
Need of Assistance (CINA) proceedings
were the universe from which the files to
be read were selected.
Eight hundred and ninety seven (897)
names were randomly selected from the
universe. Through information from the
Baltimore City Juvenile Circuit Court, the
Attorney General, the Baltimore City Fos-
ter Care Review Board, BCDSS and the
Legal Aid Bureau, each randomly drawn
name was checked against the study crite-
ria, approximately one-quarter met the cri-
teria.
Plaintiffs' casereaders read 149 of the
224 cases that met the sampling criteria (1/4
of 897). Dr. Festinger concluded that her
opinion could reasonably be based on that
number.
Casereaders extracted only information
found in the child's record. They recorded
any documented concern, suspicion, or com-
plaint of child maltreatment, casereader
judgments were not recorded. The readers
used a 69 page questionnaire containing 77
questions to be answered for each ease.
The casereading instruments provided uni-
form summaries of the readers' observa-
tions.
Criticisms of Plaintiffs' Study
Defendants' witness Roger White, Ph.D.,
Associate Professor at John Hopkins
School of Public Health in the Department
of Maternal and Child Health, was quali-
fied as an expert in statistics and the use of
random sampling techniques in social sci-
ences and child welfare studies. Dr.
White's criticism of the plaintiffs' sampling
methodology, included: (1) uncertainty as
to the sampling frame; (2) the lack of an
explanation why only 149 of the 230 "total
end sample" were the basis for Dr. Fes-
tinger's conclusions; (3) the lack of opera-
tional definitions for such terms as "emo-
tional abuse" and "sexual abuse"; (4) al-
leged inaccuracies in computation of ran-
dom sample (i.e., the sample should have
been about 500 names not 230); and (5)
concern about the reliability of the complet-
ed case reading instruments. After consid-
ering these criticisms, the Court finds that
the plaintiffs' study is sufficiently sound
for the purposes of this motion.
The sampling frame was foster children
represented by the Legal Aid Bureau in
CINA proceedings. The 149 cases used as
a basis for Dr. Festinger's opinions had
been analyzed in time to be utilized at the
hearing. There is no evidence of signifi-
cant statistical bias in the sample. Approx-
imately 220 cases were to be examined
because that is the number of cases that
met the sample criteria.
With respect to "operational definitions",
plaintiffs' casereaders merely recorded ex-
pressions of concern found in defendants'
own records about each child.
As to the reliability of the completed
instruments, the Court observes that dur-
ing training every case was double-read
and, after training, every tenth case was
double-read. The Court's examination of
the compiled instruments indicates that
they were completed accurately. More-
over, defendants' expert recognizes Dr.
Festinger as an expert in the field of social
research and has acknowledged that she is
"a very appropriately-acclaimed individu-
al;" he has also cited Dr. Festinger in his
own work.1
_______________________________________________
1. Defendants' expert undertook a study of the
population of children in foster care in Balti-
more which was similar in many ways to that
conducted by Dr. Festinger. In that study de-
fendants expert examined the health status of
foster children. The methodology used was a
random sampling of foster care records from
which were excluded the files for children who
were placed in group or institutional care; chil-
dren who remained in foster care for less than
30 days; and children whose case records could
not be located. From those case records that
met his sample criteria, defendants' expert con-
cluded that scant information is kept as chil-
dren's medical history; that a concerted effort
needed to be made by BCDSS to insure that
such information is available for use; that
BCDSS needed to improve the adequacy of at-
tention to health needs; and that there had to be
sufficient personnel and budgetary resources
necessary to attend to the health needs of chil-
dren.
2. See Appendix 2 for additional summary of
these 16 cases. [Editor's Note: Appendix 2 was
omitted from publication.]
__________________________________________________
In light of the soundness of plaintiffs'
methodology, * * * the Court concludes
that plaintiffs' study is a reliable evidentia-
ry basis for the Court's findings.
Results of Sampling
Of the 149 cases read, 42 indicated mal-
treatment in the foster home. From this
finding, Dr. Festinger projected that 282
children per thousand might be maltreated.
Dr. Festinger further commented that if
only 14 of the 149 children had actually
been maltreated, then 94 children per thou-
sand were likely to have been maltreated
during the study period.
As of the hearing, plaintiffs had conduct-
ed an intensive review of 18 of the 42 cases
in which maltreatment was indicated dur-
ing the most recent sampling period of May
1, 1985 through April 30, 1986.
Plaintiffs believe that the moat probative
indicators of the current status of the fos-
ter care program are these 18 cases. The
18 cases depict a pattern of physical, sexu-
al and emotional abuses inflicted upon chil-
dren in the custody of BCDSS.
The additional 24 csses are less recent
and plaintiffs had not examined them in
detail at the time of the hearing. For these
additional 24 cases, plaintiffs introduced
portions of the casereading instruments
where maltreatment was recorded. The
Court's review of the submitted documen-
tation on these additional 24 children indi-
cates that maltreatment is likely to have
occurred in at least two-thirds of the cases.
Instances of Maltreatment Not
Developed By Random
Sampling
Plaintiffs also offered evidence of mal-
treatment or neglect of 16 other children
who came to the attention of the Legal Aid
Bureau immediately before the filing of the
motion for preliminary injunction. Largely
uncontroverted testimony from treating
physicians, some parents, and documenta-
tion submitted to the Court revealed chil-
dren who had suffered continuous sexual
and physical abuse or neglect in foster
homes; children who had been placed in
homes which defendants knew were inade-
quate; and cases where reports of abuse
were not promptly or adequately investi-
gated to prevent further placements of oth-
er children in those homes.
The tragic consequences of these defi-
ciencies include sexual abuse of young girls
by their foster fathers and a child who
contracted gonorrhea of the throat after
sexual abuse by the adult son of a foster
parent in an unlicensed foster home.2 In
eight cases, defendants failed to assure
that medical treatment prescribed by physi-
cians and basic education were provided.
Findings of Fact
The Court makes the following enumer-
ated findings of fact as to plaintiffs' sam-
pling and the 16 additional cases not devel-
oped through sampling:
1. Dr. Festinger is an expert in the field
of social research methodology, foster care
systems and child welfare policy.
2. The Court's review of the caseread-
ing instruments indicates that the caseread-
ing instruments were completed accurately.
3. Plaintiffs' random sampling study of
children in the custody and care of defend-
ants is a sufficient basis for determining
whether systemic problems exist in the Bal-
timore foster care program.
4. From the Court's review of the case
records of the cited 18 children, it is evident
that the expressed concerns about the con-
ditions in the foster home and treatment of
each child were well-founded in 15 cases.
Indeed, in some cases the state of the fos-
ter home and treatment of the child were
cause for grave concern.
5. The concerns expressed in the addi-
tional 24 cases were consistent with those
of the 18 eases of most recent origin.
6. When the 18 cases of most recent
origin are considered together with the ad-
ditional 24 cases, the number of cases
where expressed concerns were well found-
ed very likely exceeds 30.
7. Where the concerns expressed are all
well-founded and verified, the children
were at risk of harm to their emotional and
physical well being.
8. The number of children at risk out of
the sample of 149 is sufficient to indicate
that deficiencies exist throughout the fos-
ter care system as administered by the
BCDSS.
9. The sample reveals that existing defi-
ciencies include the failure to remove chil-
dren from homes where physical and emo-
tional abuse and neglect are threatened;
the licensing of foster homes where foster
parents are unable to care properly for the
children; the granting of "exceptions" that
allow homes to remain open when they are
clearly inadequate or a risk to the children
in them; the lack of appropriate numbers
of satisfactory homes; and the over-re-
liance on physical evidence of abuse and
questioning of children when abuse reports
are investigated.
10. There is a great likelihood that
many children in the foster care adminis-
tered by BCDSS are at risk of suffering
irreparable harm.
11. The additional 16 eases of abuse and
neglect that were not developed through
random sampling cannot be dismissed as
"anecdotal." Indeed, while the Court does
_________________________________________________
3. The CHP was established as a private health
maintenance organization in 1976 to provide for
the health needs of foster children. A health
maintenance organization for foster children
was desirable because they usually have special
health needs and a history of noncontinuous or
episodic care.
__________________________________________________
not rely on these cases in concluding that
systemic deficiencies exist, these cases cor-
roborate the deficiencies identified through
plaintiff's study.
12. In most of these 16 cases, the situa-
tions placing these children at risk were
not resolved or confirmed until two months
before or after, the filing of plaintiffs' mo-
tion for a preliminary injunction.
(B)
Inadequate Medical Care
To support their allegations that foster
care children receive inadequate health
care, plaintiffs offered the testimony of
two medical experts. Dr. Archie Golden is
an expert in pediatrics and the administra-
tion of health programs far children, he has
been the medical director of the Chesa-
peake Health Plan3 ("CHP") for over six
years. Dr. Charles Shubin is an expert in
the field of pediatrics and the diagnosis of
child abuse and neglect. Drs. Golden and
Shubin have extensive experience treating
foster care children in the custody of
BCDSS.
The testimony of Drs. Shubin and Golden
established that foster children were often
abused or neglected in their natural homes
and are generally in greater need of health
care than other children. Foster children
have numerous mental health or psycho-so-
cial problems and typically suffer from
chronic illnesses; approximately 29% have
eye problems; and some 28% of foster chil-
dren do not have up-to-date immunizations.
Foster children often receive treatment
for one episode of an illness in one facility
and visit another for a subsequent, episode
of the same illness; thus, there is no conti-
nuity of information and records about the
child's health treatment and a lower quality
of care results.
Findings of Fact as to Medical Care
The Court makes the following enumer-
ated findings of fact about medical care
provided foster care children:
l. Of the 2,600 to 2,800 children in
BCDSS foster care today, 600 are enrolled
in CHP. While most of the remaining chil-
dren do not qualify for CHP enrollment, up
to 400 children eligible to participate in
CHP are not enrolled.
2. Although many children do not re-
main in foster care longer than 30 days,
and there are no reliable statistics about
the number of children who do not appear
for medical appointments, it is apparent
from the testimony of Drs. Shubin and
Golden that a major problem in rendering
health care to long term foster children is
their failure to appear at medical appoint-
ments. CHP has articulated this concern
to BCDSS, but BCDSS has failed to re-
spond adequately.
3. Physicians treating foster children
are often provided incomplete medical his-
tories and must rely on the child being
treated or an older sibling for such infor-
mation.
4. The lack of an adequate medical his-
tory impairs effective medical treatment
and exposes a foster child to such risks as
redundant vaccinations or immunization
with vaccines to which they may be aller-
gic.
5. Sometimes natural parent hostility
toward BCDSS increases the physician's
ability to obtain a complete medical history,
and physicians also encounter difficulties
obtaining medical histories of children since
entering foster care.
6. Defendants' present system of pro-
viding necessary medical care to foster chil-
dren is inadequate to ensure continuous
and informed treatment for those children.
(C)
Absence of Protection Afforded
Code 517 Children
In 1983, defendants created the "Code
517" category of foster children. Although
defendants are legally responsible for
these children, they are placed in unli-
censed homes. The caretakers in these
homes, often relatives, are either unwilling
to assume approved foster parent status or
unable to meet foster home standards.
Code 517 children are not provided services
by the Division of Foster Care Services;
their cases are not reviewed by the Foster
Care Review Board; they are not subject to
the review required by Federal law as are
other foster children, there are no foster
care payments for these children, and they
are not considered by defendants to be in
foster care. Suspected abuse or neglect in
"Code 517" homes is not reported as foster
home abuse. As of the commencement of
the hearing, there were 312 children who
were committed by the Courts to BCDSS
and placed in the Code 517 category. No
evidence of neglect or abuse was presented
as to this class of children. While plain-
tiffs' suggestion of likely harm to these
children from nonsupervision is credible,
there is no basis for a finding of systemic
abuse or neglect.
(D)
The Harris Task Force and
Purported Improvements
Sometime before filing suit in 1984,
plaintiffs supplied defendants with a copy
of the original complaint in this case. In
response, defendants established the "Har-
ris Task Force" to conduct a review of the
foster care system in Baltimore City. The
Task Force conducted interviews of several
senior staff members at BCDSS. The Task
Force also conducted a random review of
15 foster care cases including ten involving
reports of suspected abuse. Based on
these interviews and this random sample,
the Task Force identified a number of "sys-
tematic problems" and suggested correc-
tive action.4
Defendants purport to have undertaken
a number of improvements in the Balti-
more foster care system based, in part, on
the findings of the Harris Task Force.
The Harris Task Force found the follow-
ing "major systematic problems" in the
___________________________________________________
4. Although defendants attack the validity of the
methodology used by plaintiffs in their random
sampling, defendants do not take issue with the
Harris Task Force's findings of systemic defi-
ciencies based on a review of fifteen foster care
cases.
___________________________________________________
BCDSS foster care program (1) the purpose
of family care was not well-defined leading,
for example, to the placement in foster
homes of children whose needs could not be
met within a private home setting; (2) pay-
ments to foster families were unrealistical-
ly low; (3) there were not enough homes,
and there was "no concerted effort to re-
cruit foster homes"; (4) licensing of foster
homes was inadequate: a lower standard is
applied to restricted homes than regular
homes, and licensing is based on inade-
quate information; (5) "serious gaps" in
the training provided to foster families,
BCDSS case workers and their supervisors;
(6) BCDSS files contained inadequate infor-
mation about medical histories, foster par-
ents and education; (7) the "agency's orga-
nizational structure is conducive to chaos";
(8) some caseworkers and supervisors
lacked necessary training; (9) more strict
enforcement of policies requiring investiga-
tion of abuse and neglect complaints was
necessary; (10) the Department of Human
Resources (DHR) needed to improve moni-
toring of BCDSS to ensure the adequacy of
services; (11) substantial increases in staff
size were necessary to reduce ratios of
cases handled by foster care workers; (12)
poor morale among BCDSS staff; (13) need
for a pre-placement diagnostic facility to
place children on an emergency basis and
identify their problems; (14) need for an
automated system to monitor foster care
cases; (15) a lack of coordination between
BCDSS and agencies outside the city when
children were placed outside the city; (16) s
policy classification was required for nonle-
gally responsible custodians who requested
a foster care license or payments; and (17)
poor relationships among BCDSS case-
workers, BCDSS Legal Services, and the
Juvenile Courts with respect to child place-
ment decisions. The findings of the report
are uncontroverted.
However, defendants contend that they
have attempted to improve foster care in
Baltimore. Among the major efforts de-
fendants have undertaken are (1) review of
all BCDSS foster homes; (2) training for
foster care workers; (3) recruitment of
new foster parents; (4) increases in foster
care board rates; (5) training of foster
parents; (6) additional foster care staff to
reduce the ratios of caseworker to children
to 1 to 20; (7) clarification of lines of au-
thority within the DSS; (8) recruitment of
better qualified social workers; (9) medical
screening of all children before their place-
ment; (10) development and distribution of
a foster care manual and revised policies;
and (11) initiation of an intensive family
services program.
Findings of Fact as to Purported Im-
provements Undertaken Pursuant
to the Harris Task Force
The Court makes the following enumer-
ated findings of fact as to the significance
and effectiveness of defendants' purported
improvements undertaken pursuant to the
Harris Task Force:
1. Many of the most essential of de-
fendants' efforts to improve foster care in
Baltimore have been incomplete and inef-
fective.
2. As recommended by the Harris Task
Force, defendants undertook a review of all
BCDSS foster homes. This review, defend-
ants contend, "was initiated to determine
whether foster children were at risk in
their placements." As a result of that
review, 444 homes were closed in 1985, and
189 were closed in 1986. Defendants con-
tend that as a result of the closings, the
pool of BCDSS foster homes is safer now
than at the time of the Harris Task Force
report. However, during cross-examina-
tion of Secretary Massinga, it was estab-
lished that the homes closed were primarily
those of elderly foster parents who no
longer wanted to be registered as foster
homes and no longer had foster children in
their homes.
3. During 1985 and 1986, only 53 addi-
tional regular or unrestricted foster homes
were recruited and opened by defendants.
Furthermore, when the hearing com-
menced, defendants had only one person
working solely on recruitment of foster
homes.
4. The "Intensive Family Services Unit"
at BCDSS, set forth as a recent improve-
ment in foster care, was disbanded in 1986.
5. The Harris Task Force recommended
that foster care workers receive training.
Defendants have proffered a document en-
titled "Training Sessions for BCDSS Foster
Care Workers: 1984-1986." During cross-
examination it was revealed that this doc-
ument was not what it purported to be, and
defendants were unable to offer any reli-
able evidence of training provided to foster
care workers.
6. The Harris Task Force recommended
that DHR "improve its foster care quality
control review system." DSS has devised
a system for case record reviews to evalu-
ate the quality of services provided to fos-
ter care children. However, from January
until October, 1986, no quality assurance
reviews of foster care records took place.
7. At the hearing defendants highlight-
ed several policies implemented to protect
children in foster care; the plaintiffs
presented evidence that those policies are
violated. Violated were the policies requir-
ing that an investigation of an abuse report
be commenced within 24 hours of its re-
ceipt; that no further placements be made
in a foster home that is the subject of a
report of suspected abuse until completion
of an investigation; and that all children be
removed from a home where a finding of
abuse is "indicated."
8. Defendants have yet to reduce the
ratio of workers to children to 1 to 20.
9. Given defendants' incomplete and
ineffective responses to the systemic prob-
lems identified by the Harris Task Force in
1984, it is likely that these problems still
exist and that significant numbers of foster
children are at risk of irreparable physical
and emotional harm.
10. Given defendants' ineffective and
incomplete responses to the problems iden-
tified by the Harris Task Force and the
ineffective implementation of their own
child protection policies, it cannot be as-
sumed that the recent increased funding of
some programs will resolve systemic foster
care problems.
____________________________________________