EFFORTS AT REFORM
STATE OF TENNESSEE
PART 2
It is easy to succumb to the mentality of the quick-fix. Risk assessment tools, specialized treatment approaches, and new administrative structures are often promoted or adopted as solutions to the CPS problem. New approaches are embraced and then discarded when another death occurs.
Susan J. Wells, Ph.D.
ABA Center on Children and the Law
Current services and approaches, while much criticized, have a constituency often resistant to change, including tens of thousands of caseworkers trained in traditional approaches.
Lisbeth Schorr
Author, Common Ground
THE NEW GOVERNOR
Phil Bredesen, the 48th governor of Tennessee, took office January 18, 2003, with a promise to “focus energy on real results by leaving behind predictable and stale political debates.”[57]
Among his priorities for children, according to his web site, are:
Creating a "Children’s Cabinet" to encourage better cooperation between nonprofit groups and health agencies responsible for children’s welfare, including TennCare and the departments of Children’s Services, Education and Health.
Fighting child abuse and neglect with better tools and resources. Governor Bredesen wants to equip DCS case managers with cell phones and laptops so they can do their jobs more efficiently, and he wants to expand Tennessee's network of not-for-profit child advocacy centers.
Recruiting foster and adoptive parents to step in to care for needy children. Governor Bredesen will use his bully pulpit to raise public awareness and launch a statewide campaign drawing attention to the need for foster parents and adoption.
There is no mention of improving the quality of education for children under this heading. Nor is there any mention of building new playgrounds or community centers. Nor is there any mention made of Bredesen using his “bully pulpit” to raise awareness of the needs of children living in the homes of their natural parents.[58]
THE NEW COMMISSIONER
“The administration of child protective services itself is highly political. Not only must administrators be responsible to the general public, they are also often subject to changes in elected executives at the state and local levels. Many changes in the direction and shape of CPS take place when a new governor or mayor is elected. The actual effects of these changes, however, are unknown,” explains Susan J. Wells, Director of Research, American Bar Association Center on Children and the Law.[59]
Bredesen followed true to this mold, and Michael J. Miller was officially sworn in as the new Commissioner of the Department of Children's Services on February 10, 2003 in the Governor's Conference Room on the First Floor of the State Capitol.
“Mr. Miller began his career as a social services caseworker in Hamilton County for the Department of Public Welfare in 1971. He later served as the Administrative Assistant to the Deputy Commissioner for the Department of Human Services,” says a DCS Press Release.[60]
NO STRONGER ADVOCATE
“As you know, DCS got off to a rocky start after it was formed in 1996 out of the merger of programs in several different departments. And while the department has made strides toward resolving some critical staffing issues, there’s plenty of room left for improvement in a number of areas,” said recently-elected Governor Bredesen during his address to the Tennessee Commission on Children & Youth.
“If anyone can turn things around at DCS, it’s Commissioner Mike Miller. With just a few weeks under his belt, Mike is already grabbing ahold of DCS to make it more vigilant and more accountable. And he’s providing that strong management and leadership that I believe is absolutely necessary,” the Governor added.
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“Believe me: There’s no stronger advocate for children than Mike Miller, and there’s no one more committed to getting things right for our kids in state custody. I hope everyone in this room will offer your help to him as we work to fix the problems that have plagued that agency for far too long,” the Governor said.
During his presentation, the Governor unveiled his plan for a “Children’s Cabinet,” signing the Executive Order that would create the Cabinet before his audience.[61]
THE CHILDREN’S CABINET
The Governor’s “Children's Cabinet” included various state department commissioners, children's advocates, and Tennessee first lady Andrea Conte. Created by Executive Order # 7, the Cabinet was charged with “coordinating and streamlining the state’s efforts to provide needed services to Tennessee’s children, both inside and outside of state custody.”
“The Children’s Cabinet shall take such action as is necessary to fulfill its charge. In performing its work, the Children’s Cabinet shall focus on a broad range of issues and challenges, including but not limited to fighting abuse and neglect, promoting foster care and adoption, and raising public awareness of children’s issues,” the Executive Order decreed, establishing March 19, 2003, as the first day the Cabinet would meet.[62]
“I want us to take a completely different tack when it comes to addressing children’s issues,” Bredesen said through a March 18th press release. “Instead of everyone operating independently from their own window on the world, I want to get everyone working together, and putting the full muscle of state government to work on these issues,”[63]
Children’s Cabinets are currently in vogue, and this point was apparently not lost on the Governor. At least 16 states have a Children’s Cabinet, according to the National Governors Association, “and all indications suggest that many others are likely to follow.”
According to the Association, an effective Children’s Cabinet “can improve coordination and efficiency across state departments and local levels of government; mobilize resources around the governor's priorities for children; facilitate a holistic approach to serving children; and strengthen partnerships with the non-profit and private sectors.”[64]
Toward these ends, the National Governors Association provides a guide, entitled “A Governors Guide to Children’s Cabinets.” The Guide, created with the support of the Annie E. Casey, Ford, and David and Lucille Packard Foundations, is intended to serve as a “road map” for governors and staff interested in designing their own successful Governor’s Children’s Cabinets.
The National Governors Association also has a “Center for Best Practices,” which provides technical assistance to Governors’ Offices in the areas of: “Governors’ Children's Cabinets;” “Child and family services integration;” “Child welfare system reform;” “Child abuse and neglect prevention;” “Marriage and family formation;” and “Children and welfare reform.”
The Center’s focus is said to be that of providing “technical assistance to states as they design and implement policies and initiatives to improve outcomes for children and families.” The Center also tracks state policies and initiatives “related to child and family well-being, including child welfare system reform and human services integration.”[65]
THE FEDERAL REVIEW
In August of 2002, the federal Administration for Children and Families released its “Child and Family Services Review” assessing Tennessee’s performance during a specified time period with respect to seven child welfare outcomes in the areas of safety, permanency, and well-being.[66]
“A key finding of the review of Tennessee's child welfare programs is that the State did not achieve substantial conformity with any of the seven safety, permanency, and well-being outcomes,” the report explains.
As for the quality of care provided to its vulnerable children: “The State did not meet national standards for measures relating to maltreatment of children in foster care, foster care re-entries, the length of time to achieve reunification, the length of time to achieve adoption, or stability of foster care placements.”
“The most significant concern identified through the onsite review process was the State's inconsistency in achieving permanency for children in foster care,” the report continues, noting that:
One of the identified barriers to attaining permanency was that caseworkers tended to focus on addressing the children's problems, particularly if there were behavioral problems, with little attention paid to working with families to bring about reunification or working with foster parents to support placements and encourage permanency through adoption or guardianship.
Service provision to parents in need is a rarity in the field of child protection, and in this respect, Tennessee mirrors well the majority of other states:
Stakeholders were in general agreement that services to parents, particularly in foster care cases, are not adequate to support reunification and that the agency in general tends to be child-focused rather than family-focused in its service approach. Stakeholders noted that the agency will specify for parents the services in which they are expected to participate, but will not facilitate access to, or engagement in, those services. In addition, parents often are expected to pay for the services themselves if their insurance does not cover them.
Retaliation against foster parents who advocate on behalf of the children in their care is a theme that is familiar to many child and family advocates, and Tennessee provides no exception to the rule, as the report explains:
A key problem noted by stakeholders in two sites included in the onsite review is that foster parents sometimes are threatened with the removal of children in their care if they ask about subsidies or other forms of financial supports. Several stakeholders also expressed the opinion that DCS rarely provides foster parents with services to preserve placements when foster parents indicate that they are experiencing problems with a child in their care or with their ability to continue as foster parents.
By the time the federal reviews were completed, it was reported that: “No state fully complies with standards established by the federal government to assess performance in protecting children and finding safe, permanent homes for those who have suffered abuse or neglect.”
Tennessee scored among the ranks of the worst. "Federal officials said 16 states did not meet any of the seven standards. These states were Alaska, California, Georgia, Illinois, Indiana, Michigan, Minnesota, Nebraska, North Carolina, Ohio, Oklahoma, South Dakota, Tennessee, Washington, West Virginia and Wyoming," the New York Times reported.[67]
THE MONITOR’S REPORT
During the end of February 2003, Sheila Agniel, the federal court-appointed monitor in the Children’s Rights legal action against the state, released her first report.
The report noted that DCS has a lack of lines of accountability, and that it is hard for those who work for the agency to get straight answers when they have questions about policy. She also noted the difficulty she had in collecting data from DCS.
“Gaps in data collection, maintenance and reporting, as noted in multiple sections throughout this report, hamper DCS’s ability for self-assessment and effective implementation of the settlement agreement,” Agniel wrote.
“The ongoing work of the monitor and future reports will represent the high priority the new administration places on children and families and the level of commitment the department has for continuing our efforts toward improvement,” said newly appointed DCS Commissioner Michael Miller.
“I don't know what their plans are,” said Marcia Robinson Lowry, executive director of Children's Rights Inc. “I don't know who is going to stay in the department and who is going to be leaving.” Lowry added that management changes would be crucial if the agency hopes to comply with the agreement.
“There is nothing in this report that insists that more money be spent,” said plaintiff’s attorney David Raybin. “Money is a waste until the structure is altered. Many of these problems can be resolved by structure and management changes.”[68]
HOUSECLEANING
In June of 2003, DCS conducted some housecleaning, firing its top Memphis official, Regional Administrator Juanita White, amid an investigation into the deaths of several children under state care. The Shelby County office under her direction had come under scrutiny earlier during the year when The Associated Press reported on a state audit that found the administrator tried to conceal questionable purchases, including $5,750 paid for the use of a yacht club.
“Getting rid of Ms. White will not solve the problems. This is just a piece of the puzzle to making things better there,” said department spokeswoman Margie Maddux.[69]
For a closer look at what happened, we turn to the Comptroller’s audit in question: “The Department of Children’s Services (DCS) concealed the questionable procurement of goods and services by using the Memphis and Shelby County Community Services Agency (CSA) as a fiscal agent to pay for those goods and services. These purchases were made primarily under the control, direction, and approval of DCS management and were for the purpose of facilitating the adoption of children in state custody . . . or general expenditures for promoting adoption . . .”
The report further explains that: “The CSA fiscal office personnel prepared checks based on requests from DCS. After these checks were signed, they were often picked up by a DCS employee and delivered to the vendor. In many cases, goods were delivered directly to the DCS Regional Office, and DCS did not provide the CSA with support as to whether the goods were actually received.”
One is hard pressed to find the rationale for promoting adoptions in the lavish manner described:
Legal fees of adoptive parents (i.e., attorney fees and court costs) were paid for handling the finalization of adoptions. The CSA also paid for divorces for foster parents whose spouses were not parties in the adoptions. DCS records state that this assistance would help the foster parents complete the adoption process. In most cases, these fees were over $1,000 per case.
Entertainment was provided for the adoption/foster care parents’ appreciation banquets. For the year ended June 30, 2001, DCS hired a band at a cost of $600; for the year ended June 30, 2002, the same band was paid $800 to play at these banquets.
A local church was paid $2,590 for use of the church’s hall and preparation of dinner for a recruitment event. A gratuity of $315 was included in the amount paid to the church.
Expenditures for billboard advertisement totaled $58,700.
A local vendor printed adoption brochures for $700.
T-shirts were purchased from the former spouse of a DCS employee on at least three occasions. The cost charged to the CSA amounted to over $2,500.
Mouse pads, pens, license plate frames, keychains, and other similar items were purchased from a vendor in Jackson, Mississippi. One payment amounted to $7,933, of which $496 was for freight and handling. For the year ended June 30, 2001, this vendor was paid $13,500.
Supplies were purchased for use in training provided to foster care and adoptive parents. A local vendor was paid more than $12,000 during the year ended June 30, 2001. These supplies included such things as chairs and tables.
“The manner in which the DCS personnel initiated these procurements violated the state’s purchasing and publications procedures. Bids were not obtained and/or were not adequately documented. Persons who were not authorized to obligate state funds signed contracts for goods and services. Publications printed for recruitment and retention of foster parents were not properly approved. It appears that invoices were split in order to circumvent the state’s competitive bid process, and rush charges were paid for some of the items purchased,” the report explained.[70]
In November of 2003, the Comptroller of the Treasury provided another audit of the Department of Children’s Services. The findings are drawn verbatim from the Executive Summary:
FINDING 1 Management has again failed to implement promised corrective action and, as noted in the previous nine audits, Children’s Services has not collected overpayments. Uncollected overpayments totaling at least $1,121,992 are due from foster care and adoption assistance parents.
FINDING 2 The department charged the Title IV-E program for children not eligible for Title IV-E reimbursement, had no documentation of criminal background checks of foster parents, and appeared to place children with individuals unfit to be foster parents. This finding is repeated from the prior year. Federal questioned costs for the cases sampled totaled $98,899.
FINDING 3 Case files did not contain adequate documentation of case manager compliance with departmental policies regarding contacts, timeliness of case recordings, and permanency plans for foster children. This finding was noted in the four previous audits.
FINDING 4 Adoption Assistance files did not contain adequate documentation to support the adoption assistance subsidies paid to adoptive parents. The total costs questioned for the cases sampled were $65,521. The federal share of those costs was $41,565. This finding is repeated from the prior year.
FINDING 5 For the seventh consecutive year, Children’s Services inappropriately requested and received reimbursement from TennCare for children not eligible for TennCare services. Inappropriate reimbursements were for incarcerated youth, children not in state custody, children on runaway status, and hospitalized children. Total overpayments were $1,742,440.
FINDING 6 The department committed funds without approval. Since July 1, 2003, the Department of Children’s Services has committed state and federal TennCare funds before it had a contract with the Bureau of TennCare to provide services.
The more the state agency was “reformed,” the worse the results obtained, as the report explained: “During a review of 120 children’s case files by the auditor, it appeared the department received Title IV-E funds for 34 children (28%) during periods when they were not IV-E reimbursable. This is a significant increase from the prior audit, when the error rate was 3%.”[71]
THE HEARING
Once again, the Select Committee on Children and Youth conducted an all-day hearing intended to explore the progress in recasting the state foster care system. “I am of the opinion that we ought to scratch everything and start over,” said Sherry Jones (D-Nashville) at one point.
Department of Children’s Services Commissioner Michael J. Miller told the Committee that DCS is well on its way in its “journey toward reform of the system.”[72]
In November of 2003, the Children’s Rights lawsuit now settled, Sheila Agniel, the federal court monitor in the settlement, found that DSC was complying with only 18% of the corrective provisions it was required to meet by February 2005.
The 199-page report provided a comprehensive look at the agency. Among the findings was that required face-to-face visits between foster children and state caseworkers took place in less than 40% of the cases reviewed by the monitor. Also, reports of abuse and neglect received timely investigations in only 37% of the cases reviewed. Overall, Agniel found that DCS has failed to comply with 84 of 136 of the agreement’s provisions.
DCS spokeswoman Carla Aaron said the department is making progress. “Mainly, the issues were not whether we were in compliance, but it was whether we were making progress towards compliance,” she said. “We're not where we should be, but we're getting there.”
“Certainly, we recognize that we are not where we need to be in terms of the settlement agreement,” Aaron said, adding that the report is a snapshot of a work in progress.
The governor instructed DCS to rectify one issue immediately: Make sure that caseworkers visit foster children as required.
“Not next January—now—how do we now get those people to go out and see the people they need to?” Bredesen said.[73]
In a subsequent audit, State Auditors found that DCS had completed timely investigations in only 37% of the reported cases of abuse or neglect of foster children. The report was written to help state lawmakers decide whether the department “should be continued, restructured or terminated,” auditors explained.
“The department appears to rely on the court monitor to ensure that children are being taken care of, instead of establishing its own monitoring program for the long term, and then the department does not appropriately react to problems cited by the monitor,” the audit said.
DCS Commissioner Mike Miller said the audit and monitor’s report were “snapshots of a department in motion, in reform.”
“We’re not tinkering around the edges. We’re doing a complete reform of the department,” Miller added.[74]
THE LAUNDRY LIST
This was the Comptroller’s most comprehensive audit to date, and it is worthy of brief review. The findings are perhaps first best summarized in terms of outcomes produced for families and children:
The department does not appear to consistently provide children and families with adequate and effective services or efficiently use the available resources in the service system to ensure the best possible outcomes for its clients. As a result, the department is less able to prevent cases from being open for years with little progress, children having multiple placements, children aging out of the system alone and unprepared for independence, siblings drifting apart, and cases where it is unclear who is responsible for critical decisions.[75]
Among some other of the audit’s highlights, extracted verbatim from the report:
Management must address problems in the foster care program
Foster Care case managers do not always adhere to visitation requirements
The department does not adequately track foster care placements or ensure case workers follow related policy
Foster Care staff adherence to permanency plan and quarterly progress report policies needs improvement
The service delivery system for foster children and their families needs improvement
Not all required physical examinations of foster care children are being performed
Case managers may not receive accurate notifications of children’s health evaluations
Foster home recruitment is inadequate
Information in foster home registers is incomplete
Qualified foster care children do not appear to be receiving all necessary independent living services
There is no system to document foster home complaints
The department appears not to always obtain required psychotropic medication consent forms
Child Protective Services investigators do not always follow investigation policies or file investigation information in a consistent manner
The department does not monitor Family Support Services provided by community services agencies
Adoption Services does not provide adequate post-adoption services to prevent disruption of adoptions, nor does it track disruptions by region
There is no policy that delineates the Title VI complaint handling process.
THE SHELBY REVIEW
The Comptroller also released in November of 2003 the results of a special investigation into the Shelby County office. The House Children and Family Affairs Committee requested the investigation amidst some legislator’s allegations of a “cover-up” involving the deaths of five children in the County. In fairness to the Department, after an exhaustive review the Comptroller found no evidence “that supports a cover-up relating to the deaths or any other related inappropriate actions by department staff.” Nevertheless, the audit’s findings are revealing.
The Comptroller was directed to conduct a review of child deaths in Shelby County, and to compare the results against those of other counties. He was, however, unable to provide the results, explaining: “neither the Department of Health nor the Department of Children’s Services maintains information on death rates of children in state custody. Therefore, we were unable to either obtain the rate in Shelby County or compare it to other areas.”[76]
Also of significance was the finding that interviewed staff “believed that some case managers, while they meet the minimum qualifications and want to work as case managers, cannot do the job.” Tennessee requires only a bachelor’s degree, while other states require a bachelor’s degree in social work for the position.
The audit also provides a window on the harsh and punitive work environment case workers were forced to endure, as well as the near complete lack of support by upper management:
In interviews that we conducted, department staff reported that under the previous regional administrator people got “dressed down” in public and employees were, and still are, scared of losing their jobs. There were numerous allegations of public verbal intimidation and abuse, foul language toward staff at all levels, threats by management, and promotions being unfairly distributed. Being on probation was used as a threat toward new employees. Case managers were sometimes given bad advice by their supervisor. When they sought to ask another supervisor for advice, the case manager would be labeled a “bad worker” or “trouble maker.” Therefore, a lot of consultation was done in secret. A number of workers thought they might lose their jobs or incur other hostilities from talking to the DCS investigators or to the auditors from State Audit. They felt that, “No matter what you do, you get punished.” Staff and management interviewed shared a perceived lack of support from the central office in Nashville for the operations in Shelby County.
The Comptroller also noted: “there were inept case managers and that as a result of the Brian A. settlement agreement, and the accompanying staff reorganization, staff were promoted into positions for which they did not have proper experience.”
HEADS ROLL
In November of 2003, Governor Phil Bredesen fired DCS Commissioner Michael Miller, appointing Gina Lodge, the Department of Human Services Commissioner, to serve as Miller’s interim replacement. Bredesen cited Miller's inability to provide DCS “the cultural change” that the department needed as among the reasons he was let go.
The Cabinet-level changes in Bredesen’s administration came even as the state braced for further litigation relating to DCS’ poor performance. Children’s Rights, Inc., had announced that the organization intended to ask a federal judge to hold the state in contempt of court for the lack of progress it had made in improving its foster care system.
The court monitor overseeing the case had recently issued a status report that found the state out of compliance on 84 of 136 agreement provisions, and in compliance with only 24. The state was found to be in partial compliance with only eight other provisions. The report stated that required face-to-face visits between children and caseworkers took place in fewer than 40% of cases reviewed, and reports of abuse and neglect received timely investigations in only 37% of the cases examined between July 2002 and May 2003.[77]
The Governor announced the creation of “a working group representing business and children’s experts who can help chart a course to guide our efforts over the next several months” in the same press release in which he announced Michael Miller’s departure.[78]
The Governor’s “working group” consisted of: Steve Norris, Deputy Commissioner of the State Division of Mental Retardation Services, who was designated as chairman. Members were Steve Elkins, assistant legal counsel to the governor; Sue Fort-White, Family to Family coordinator at DCS; Steve Hornsby, special assistant to the commissioner at DCS; Linda O'Neal, executive director of the Tennessee Commission on Children and Youth; Freida Outlaw, director of Children and Youth, Department of Mental Health and Developmental Disabilities; and Mary Walker, general counsel at DCS.[79]
“We’ve waited over two years for the governor and DCS to make good on the terms of the agreement, and they haven’t even figured out what needs to be done,” said Marcia Robinson Lowry, executive director of Children’s Rights, Inc.
Governor Bredesen pointed out that DCS was only in the 28th month of its 54-month deadline. “How can you not be in compliance with something two years off?” Bredesen asked. At this point, the Governor had himself only been in office for 10 months.
Bredesen, however, conceded that DCS had no blueprint in hand. During the DCS budget hearing a few days earlier, officials failed to provide him with specific dates or courses of action with respect to the training of workers and improving the quality of face-to-face visits.
Lowry reportedly expressed no confidence that progress had been made by firing Michael Miller, or by naming his working group.
“The failure to achieve reform is not about one particular person,” she said. It is unclear how long the group will take to come up with a plan, if it devises one, Lowry said. “Task forces often do not come up with realistic and specific plans.”[80]
Bredesen thereafter instructed his “working group” to write a step-by-step plan to meet the terms of the Children’s Rights, Inc., Brian A. lawsuit settlement.[81]
THE RACIAL DISPARITIES
A study on racial disparities in foster care was conducted by University of Texas social work professor Ruth McRoy as one of the requirements in the Children’s Rights, Inc., lawsuit settlement.
The researchers found that black children remained in foster care on average 52 months, compared with 26 months for white children. The study also determined that black children are less likely to have “permanency plans” to chart a course toward the return home to their parents, and parents of black children are half as likely as white parents to receive all or some of the services they need, according to the report.
Among the study’s findings is that black children are more likely to be labeled as “delinquent” and sent to juvenile detention facilities than white children who commit similar offenses, who are instead termed “unruly,” and sent to foster homes.
The report was the third such study of racial disparity in Tennessee in recent history, but it was the most comprehensive, according to Children’s Rights, Inc. In 1997 the Commission on Children and Youth identified the problem, and the Comptroller’s office followed up with a report in 1999.[82]
THE NEW COMMISSIONER
January 5, 2004, was technically Viola Miller’s first day on the job as the new commissioner of the Department of Children’s Services. She reportedly spent her first day on the job “huddling with budget advisers, greeting her staff over cookies and punch, and promising that she would promptly reshape the embattled child-welfare agency.”
Governor Bredesen had hired Miller from Kentucky, where she held a similar post. Among her plans for Tennessee was that of becoming more aggressive about claiming its share of federal funding for child welfare.
Miller said that she would “celebrate risk taking,” even if some ideas don't work out. She also said that she wanted to borrow ideas from other states such as Kentucky, Washington and Pennsylvania: “I have no burning desire to reinvent the wheel.”[83]
But Viola Miller wasted no time in getting to work. In December—even before her appointment to office—Nashville attorney David Raybin, one of the plaintiffs’ attorneys in the Brian A. case, confirmed a disclosure by Governor Bredesen that Miller was in Baltimore negotiating with Children’s Rights, Inc., at the offices of the Annie E. Casey Foundation. The Foundation had previously mediated between the parties to the Brian A. case.
Bredesen had mentioned the talks as he introduced his new Commissioner to the news media in December of 2003.
“It is great that a new commissioner has been appointed,” Raybin said. “However, I think the best Christmas present our foster children can receive is full implementation of the Brian A. settlement agreement. That is why we filed our motion for contempt and asked the federal court to help.”
Viola Miller “has a proven track record caring for children in state custody, and she brings a wealth of experience to bear on the problems we face at the Department of Children's Services,” Bredesen said, adding that her work in Kentucky earned her a national reputation as an innovative administrator.
“This kind of no-nonsense, results-oriented leadership is exactly what we have been looking for in this department.”[84]
CONTEMPT MOTION SETTLED
On December 29, 2003, the Governor’s office announced the settlement of the threatened Children’s Rights, Inc., Contempt Motion against the state.
“Department of Children’s Services (DCS) Commissioner Viola Miller and lawyers for the State hammered out the agreement with plaintiffs’ attorneys during a meeting in Baltimore last week and subsequent telephone conferences. Leading the talks were members of the Technical Advisory Committee (TAC), a group of nationally recognized experts in the field of children’s welfare,” the Governor’s press release explained.
As of December 2003, the “nationally recognized experts” on the Technical Advisory Committee included: Steven D. Cohen, Senior Associate with the Annie E. Casey Foundation, Baltimore, Maryland; Carolyn Lapsley, Division Director with the Alabama Department of Human Resources, Montgomery, Alabama; Judy Meltzer, Deputy Director, Center for the Study of Social Policy Washington, D.C.; Andy Shookhoff, Associate Director, Vanderbilt Child and Family Policy Center, Nashville, Tennessee; and Paul Vincent, Director, Child Welfare Policy and Practice Group Montgomery, Alabama.
“An outline of implementation issues is being compiled by the working group Bredesen named in November,” the press release explained. “The group was charged with reviewing the settlement agreement and developing a clear framework and timetable to guarantee DCS meets the terms of the settlement agreement. That group has conducted a wide-ranging review of every requirement under the settlement agreement and is preparing a report for the governor’s and commissioner’s review.”[85]
REFORMING THE REFORM
In early January of 2004, Children’s Rights, Inc., presented an “improvement plan” in federal court—one that was conceived by social-welfare experts, attorneys and state government officials. The latest plan “will contain sufficient detail so that it is not simply a statement of sincere commitment to achieve the desired objectives, but is rather a blueprint for carrying out the many reforms called for in the Settlement Agreement.” It also extended the term of the agreement by 15 months, allowing the agency to avoid the possibility of a contempt of court finding.
Among the conditions of the new plan: “Management will have the expertise and authority “to champion the reform agenda.” Another condition was the establishment of a “technical advisory committee” composed of “nationally recognized child-welfare experts.”
The relationship between the central office and the regional offices was also to be clarified to create clear lines of authority and accountability. All foster-placement decisions were to be made by adequately trained and supervised staffers.[86]
THE PATH TO EXCELLENCE
On January 20, 2004, DCS Commissioner Viola Miller announced her “Path to Excellence,” and that toward reaching this end she had “appointed a six-member implementation team, which began working 10 days ahead of schedule, to assist in the development of the implementation plan.”[87]
As stipulated in the most recent negotiations with Children's Rights, Inc., “DCS is dedicating six full-time staff members to work closely with the Technical Assistance Committee to develop the implementation plan” for submission for review and approval by the plaintiffs within a 90-day timeframe.
“Veteran children’s advocate Bonnie Hommrich will lead Miller’s new implementation team. Hommrich is an executive administrative assistant and joined DCS on January 9, 2003, to guide the team in developing and refining the implementation plan,” said Miller’s prepared press release.
As DCS Commissioner Miller was drawn from the Kentucky child welfare system, her choice of front-line staffers may not come as much of a surprise.
“Hommrich has more than 35 years experience in the arena of child welfare, most recently having served as the principal assistant to the secretary for the Cabinet for Families and Children in Kentucky,” Miller’s press release explained.
Nevertheless, Hommrich’s credentials in the field of child welfare are quite impressive, and they include the handling of a Consent Decree in her own home state, as well as her having had “prior experience” with other members of the Technical Assistance Committee established by Children’s Rights, Inc., as the release explains:
Hommrich is a nationally recognized expert serving on the Executive Committee of the National Association of Public Child Welfare Administrators and as a trainer for the National College for Juvenile and Family Court Judges. Hommrich assisted in settling a consent decree in Jefferson County, Ky., and was instrumental with the implementation of the Family to Family program, a national model that focuses on keeping children that have been abused and neglected in their own communities by building partnerships within those neighborhoods and communities. Hommrich also has prior experience working with several members of the Technical Assistance Committee.
“Dr. Miller's appointment of Bonnie Hommrich to lead the implementation team reflects the importance of this activity. I have worked closely with Ms. Hommrich over several years as she worked to improve the child welfare system in Louisville and the State of Kentucky. She brings to this task experience in reforming public child welfare systems, and a commitment to excellence,” said Judith W. Meltzer, deputy director, Center for the Study of Social Policy in Washington, D.C. “As a member of the Technical Assistance Committee, I am optimistic that Tennessee, under Dr. Miller’s leadership, will move forward expeditiously to substantially improve results for children and families.”
Other Path to Excellence Team members include: Elizabeth Black, DCS Kinship Care Program Coordinator, Family to Family Co-Coordinator; Patty Odom, Team Coordinator, Davidson County Foster Care Program; Sophia Jackson, Case Manager II, Montgomery County Foster Care Program; Melissa Simmons, Team Coordinator, East Region/Clinton, Tennessee.
“This team brings expertise in child welfare and a level of experience from the field that will prove invaluable in the planning process,” said Commissioner Miller’s release.
The ranks of the best and the brightest had swollen, as unprecedented alliances had now been formed. The Governor’s office pledged its full support to the reform efforts, even to the extent of issuing an Executive Order. And the “no-nonsense, results-oriented” DCS Commissioner appointed by the Governor had not only negotiated with Children’s Rights, Inc., attorneys in the offices of the Annie E. Casey Foundation even before her official appointment to office, but she had appointed a child welfare “expert” of whom even one of the “nationally recognized experts” on the Technical Assistance Committee designated by Children’s Rights, Inc., had approved.
The legislature was clamoring for reform. The news media had produced a number of exposes demanding change, and the public was demanding that something be done. The degree of precision and clarity in the Children’s Rights, Inc., settlement exceeded anything that had preceded it. The degree of focus and attention given to the issue of reform had reached proportions heretofore unheard of. Everyone was on the same page.
A PROGRESS REPORT
In November of 2004, the Comptroller of the Treasury rolled out another audit. The issues regarding the agency’s improper and ineffective employer-employee relationships, its processing of journal vouchers, and grants not being charged when initial transactions were recorded had finally been resolved. There was, however, one lingering problem: “As noted in the prior five audits, the department did not perform reconciliations related to Social Security trust funds and did not return funds to the Social Security Administration timely.”
The report explained that: “The department has made no significant improvements in performing the necessary reconciliations of the Social Security trust funds. There appears to have been little, if any, progress in developing the automated system, and no significant controls have been added to detect errors in additions and withdrawals from the trust fund accounts.”
As of June 30, 2003, the trust fund’s total balance reflected on one computer system was $15,949,544, over which princely sum the department could provide “no assurance that all the revenue received, in total, had been properly credited to the children’s trust fund accounts and that all amounts transferred to the State of Tennessee, in total, were properly deducted from the children’s trust fund accounts.”[88]
MORE HOUSECLEANING
September of 2004 provided yet another embarrassment for DCS, when it came to light that one of its foster care case managers in the Tullahoma office was arrested and charged with contributing to the delinquency of a minor.
Assistant District Attorney Jason Ponder acknowledged there were allegations “about some sort of relationship between this particular case worker and this child. We are currently investigating it.”
A deputy went to the caseworker’s home after interviewing his foster parents, and knocked on the door, but there was no answer. About 15 minutes later, the deputy drove by the residence and saw the youth leaving through the back door.
The former case manager, Cathryn Boles, reportedly violated a restraining order that DCS had filed against her, preventing her from seeing the child or any other children originally assigned to her care.[89]
THE CONTINUING CRISIS
In October of 2004, the regional newspaper The Tennessean reported that: “A recent series of alarming cases—ranging from severe physical abuse to prolonged sexual abuse to the beating death of a toddler—has prompted renewed scrutiny of the state Department of Children's Services’ ability to protect children.”
One state legislator suggested that the problems in DCS are so entrenched that the agency may have to be abolished and rebuilt from the ground up.
“One of the things we have to decide is, do we abolish DCS and start over?” said state Senator Thelma Harper (D, Nashville).
“There are days when every one of us has that thought,” said Department head Viola Miller. “We may not be perfect, but we're better than nothing.”
Senator Harper, a member of the Select Committee on Children and Youth, said Miller came into a “sinkhole” when she took over the agency in January, inheriting 20,000 cases that hadn't been acted upon in two years.
Some child advocates said that some DCS workers simply don’t respond to reports of abuse, even when the abuse has been confirmed. If families question the judgment or authority of a caseworker, the workers “take it personally” and sometimes become vindictive, said Helen Shelton, a victims’ advocate with the Tennessee Victims Coalition. She also said workers sometimes fail to deal with confirmed cases of abuse.
“I have found in my 15 years of experience that when the authority of DCS is questioned, the best interest of the child is set aside and they take it personally,” she said. “I'm so sick of this department abusing their authority and failing to protect the best interests of the child.”
Linda O'Neal, executive director of the Tennessee Commission on Children and Youth, conceded that some caseworkers aren’t receptive to criticism or suggestions from the families they work with but said there is a new training program designed to alleviate that problem. The Commission she directs is an independent state agency formed to evaluate services for children in state care and act as an advocate for legislative and policy improvements.
DCS head Viola Miller also conceded that some case workers have not been as open and compassionate as they should have been in dealing with some situations, while describing her new training program.
“A big focus of this training is about building trusting relationships with families and treating people with empathy, compassion and dignity,” she said.[90]
THE NEW YEAR BEGINS
The year 2005 began with a report of the parents of a six-month-old boy presenting a $600,000 claim to the Tennessee Claims Commission after their son drowned in the bathtub in a foster home.
The foster mother, Sherika Hamilton, was scheduled to make her first court appearance on charges of aggravated child neglect in mid-January.
DCS became involved with the family after the boy was born, and after his mother was hospitalized for post-partum depression.[91]
Another veil was lifted on the operations of the juvenile courts when it came to light that Wilson County Judge Barry Tatum had been ordering foreign-born women to learn English for the good of their children. In a January case, he insisted that an 18-year-old Mexican woman take language classes and consider using birth control.
"A parent has the right to raise a child the way they see fit, but government gets involved at some point," Tatum said. "I'm concerned about the civil rights of the child and what will happen to her."
The immigrant woman and her American-born toddler both entered the state's custody in 2003 after a complaint was made to DCS accusing the mother of neglect by not following up on immunizations said a DCS spokesperson.
Local civil rights attorney Jerry Gonzalez said the case sounded similar to another recent order issued by Tatum, a decision that Gonzalez is appealing. In that case, Gonzalez said, Tatum had ordered a Mexican woman in a neglect case to learn basic English within six months. If she didn't comply, a hearing was to be held to consider terminating the mother's parental rights to her 11-year-old daughter.
"Ordering a woman to learn English or lose her child, that's blatantly unconstitutional," Gonzalez said. "The First Amendment allows all of us to speak whatever language we choose to speak. There's nothing compelling us to speak English, to learn English or be able to write English."
Judge Tatum said he could not immediately remember the case Gonzalez referred to because of the volume of cases that move through his courtroom.
"This is clearly not acceptable, and we're worried that the judge has gone over the line," said Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee. "A judge should not require a parent to learn English to have access to their child, and the government should not be telling parents how to communicate with their children." [92]
CONCLUSION
“It is easy to succumb to the mentality of the quick-fix. Risk assessment tools, specialized treatment approaches, and new administrative structures are often promoted or adopted as solutions to the CPS problem. New approaches are embraced and then discarded when another death occurs,” explains Susan J. Wells of the American Bar Association’s Center on Children and the Law.[93]
This peculiar phenomenon has been amply demonstrated by Tennessee’s continued efforts at reform. Today, the Tennessee foster care system is a “revolving door,” through which the number of children who enter the system approximately mirror the number who leave during any given year, precisely as the Urban Institute discovered during the early 1970s.
Assuming that the data provided by the Department of Children’s Services is to be believed, the Department cared for a total number of approximately 17,900 children in out-of-home placements during FY00-01. Over this period, 6,825 children entered custody, while 6,913 children exited custody.[94]
“The need for fundamental reform of the child welfare system was readily apparent from the mid-1980s on,” writes Lisbeth Schorr, who explains that: “Current services and approaches, while much criticized, have a constituency often resistant to change, including tens of thousands of caseworkers trained in traditional approaches.” Many of them suffer from what Schorr describes as a “bureaucratic malaise,” one that “routinely sabotages and undermines the agency’s capacity to change.”[95]
Sociologist John Hagedorn recounts his efforts at reforming the Milwaukee child welfare system as having been thwarted by a deeply entrenched “good old boy network” composed of lifetime bureaucrats and services providers. He cautions his reader to beware of “symbolic reforms.” Among the lessons he learned was that efforts at reforms “historically have been coopted by bureaucracies and used to feed their self-interests.”[96]
Beyond the interests of the caseworkers and the upper level management bureaucrats is an army of self-styled professionals who earn enviable livings serving as field consultants and expert witnesses while masquerading as benevolent “reformers” to legislators and other outsiders with their eyes on a child welfare agency caught in the spotlight.
An army of counselors, psychologists, parent educators, group home providers, foster parents, home visitors, attorneys, as well as other industry vendors and adjuncts add only further to the burden of bringing about reform.
Another army of educators provides the industry with training seminars, and with an ever-growing body of largely useless and derivative articles in industry journals, even as they rake in uncounted millions in federal grants. A recent examination of one such writer’s resume indicates a federal grant allotment of $80,000 for just one article in print. Simply stated, the child welfare system has far too many “stakeholders” with far too much at stake to allow for meaningful reforms.
Through a variety of industry-only trade associations, a discreet spider’s web exists behind the helping façade. Attendance at invitation-only industry events, such as the annual CPS Risk Assessment Roundtable, help to ensure both the cross-contamination of ideas and the building of cordial affiliations between various players in the industry.
The National Center for Youth Law currently maintains a “Litigation Docket,” which holds an ever-growing list of legal actions taken against states and their child welfare institutions for gross violations against children.[97]
Yet is this the best answer to be devised? “This system has been sued and sued and orders have been issued and people have just continued on their merry way,” observed George Miller as he presided over the federal hearings leading to the passage of the Adoption Assistance and Child Welfare Act during the 1970s.[98]
Could the best answer for Tennessee be that of going back to the beginning? In the halls of academia, the merits of programs such as the Comprehensive Emergency Services program enjoy spirited debate, yet few implementations of such programs exist on any meaningful scale. The reasons are not as complex as they may appear.
In their own way, the study’s authors may have contributed to the demise of the very program they had hoped to introduce, for among the recommendations of the CES report was that mandated reporting of abuse and neglect should be encouraged on the national level. But when the CES demonstration program was implemented, reports of child abuse and neglect were relatively scarce. In 1967, only 9,563 reports were received nationwide, while in 1968 the number had inched up to 11,000.[99]
Even as the National Center for Comprehensive Emergency Services was distributing its training material in 1975, the number of abuse and neglect reports had blossomed to 294,796. “The state mandated reporting laws resulted in an immediate and meteoric rise in child abuse reports across the United States,” explains professor of social work Duncan Lindsey. And the rise was reflected in the individual states. In Florida, the number of child abuse and neglect reports increased in just one year from 17 in 1970, to 19,120 in the year that followed.[100]
Curtailing the excessive number of deliberately false and otherwise inappropriate reports to agencies would be an incremental step in the right direction, while the complete restructuring of the federal fiscal incentives favoring child removal and placement over the provision of remedial services would be a far better one.
For decades, critics have asserted that “perverse” federal financial incentives are a major component that would need to be addressed before any meaningful changes can come about at the state level. The contributing role of the federal government in perpetuating the “crisis in foster care” has once again reached national attention with the report of the Pew Commission on Foster Care, which led to hearings at the federal level.[101]
States have historically diverted those few meager federal financial resources intended to assist families in crisis and to curtail out-of-home placement, instead using them to offset costs as part of their revenue maximization schemes.
In 1997, for example, Tennessee appealed two disallowances for federal reimbursement to the Departmental Appeals Board of the Department of Health and Human Services, which upheld the disallowances for claims of $663,641 and $3,216,342 under the Emergency Assistance program. The state had filed the claims to recoup what the board described as “expenditures incurred for providing benefits and services to children who were within the jurisdiction of Tennessee’s juvenile justice system.”
As the Administration for Children and Families explained in its initial disallowance: “The context of the EA program is the family and its purpose is to help family members by providing financial assistance and services to enable them to meet family emergencies that they are experiencing.” The Board explained that the EA program was established to provide “emergency assistance to needy families with children.”[102]
In additional to restructuring the federal financial incentives favoring out-of-home placement, strict rules of enforcement must be established to prevent states from misdirecting increasingly scarce resources intended to assist families and prevent placement. Until such time as the federal role in out-of-home care is restructured, truly meaningful reform is unlikely to occur, nor are any incremental short-term improvements accomplished likely to last over the longer term.
Last updated February 5, 2005