Vol. 6, No. 1 November 2001
judge rules foster children have the right to sue state for speedy adoption
(June 25, 2001 - Milwaukee) In
the first court ruling of its kind, a federal judge has ruled in the
class action lawsuit, Jeanine B. v. Scott McCallum, that children in
foster care have enforceable federal rights to a speedy adoption and
can sue a state for failing to make them legally available for adoption
so they can be placed in an adoptive home as required under the Adoption
and Safe Families Act of 1997 (ASFA). Under ASFA, a child welfare system
is required to initiate a proceeding to terminate the parental rights
to any child who has been in their custody for 15 of the most recent
22 months and to seek an adoptive home for them unless a specific statutory
The decision by Hon.
Rudolph T. Randa, U.S. District Court, Eastern District of Wisconsin,
is the first court ruling to fully examine the rights of children to
sue under ASFA and whether those federal rights impose binding obligations
on a state. The Jeanine B. lawsuit was brought by Children's Rights,
a national non-profit advocacy group for children, and the ACLU of Wisconsin
Foundation, charging, among other issues, that Wisconsin routinely fails
to initiate timely termination of parental rights proceedings or to
seek adoptive homes for children in the custody of the state-run Bureau
of Milwaukee Child Welfare for 15 of the most recent 22 months. The
state had argued that ASFA provisions were too vague and amorphous to
be judicially enforceable. Judge Randa has roundly rejected the state's
argument and ruled that the rights to a speedy adoption are within the
competency of the federal courts to enforce.
As many as 75% (5,138)
of the approximately 6,850 children in the custody of Bureau of Milwaukee
Child Welfare have been in foster care over 15 months, but the state
prepares few cases for adoption as required. Children in care for years
with no realistic chance of being reunited with their biological parents
are being denied the chance to be adopted by loving families with which
they are bonded or to have adoptive families found for them because
the state fails to take the actions required by federal law.
ruling is a decisive victory for foster children in Milwaukee and nationwide"
stated Eric Thompson, attorney on Jeanine B. for Children's Rights.
"Their right to a speedy adoption is now firmly established. The
state of Wisconsin has shown deliberate indifference to the needs of
children in their custody and it will now be held accountable by the
federal court. Once we prove the violations of ASFA, which the state's
own records establish, then the court can order the state to take necessary
steps to comply with this federal law."
Case law on enforceability
of ASFA by children in the federal courts is just beginning to be established.
In his decision, Judge Randa states that previous judges' decisions
in Children's Rights lawsuits in Tennessee and New Jersey have not directly
addressed the question of whether the rights arising out of ASFA are
enforceable. Randa concludes that:
The enforceable rights
created by Congress are: (1) the right to have the defendants [State
of Wisconsin] initiate a proceeding to terminate parental rights when
a child has been in foster care custody for 15 of the most recent 22
months; (2) the right to have the defendants at the same time, begin
to identify, recruit, process and approve a qualified family for adoption;
and (3) the right to have the defendants document any exception that
apply under 42 U.S.C. §675 (5)(E)(i)-(iii) [ASFA provision].
is the first specific analysis and discussion of a child's right to
sue under ASFA." stated Marcia Robinson Lowry, executive director
of Children's Rights, "Congress passed this legislation to speed
adoption for children, but states have argued that children could not
enforce laws passed for their benefit. This judge has firmly rejected
that argument and said there is a federal statutory cause of action
by which children can sue to ensure that their rights are safeguarded.
This decision may also expose the state to enormous monetary liability
for individual foster children who are suffering debilitating psychological
and emotional harm as a result of languishing in various foster care
placements for years, in violation of federal law."
Children in the Jeanine
B. lawsuit who have been injured by the state failing to take action
to find them adoptive homes include, among others, the following:
DANNY AND FRANK: Danny
(seven-years-old) and Frank (four-years-old) were removed from their
mother's home in 1998 due to neglect and placed in foster care. Nearly
a year later, a caseworker determined that the boys should be placed
with their maternal grandmother, even though she had a history of drug
abuse and homelessness. After two months, the children had to be removed
from the grandmother because she refused services and their mother was
living with them. The boys were placed in a new foster home that was
found to be unsafe, and then placed in yet another foster home. Danny
and Frank were then returned to their initial foster parents, who noted
both boys were in worse condition than before. The state's plan was
to reunify the boys with their mother, even though she failed to comply
with her case plan and the boys' therapist advised against visitation
until the mother made improvements. Their goal is now adoption, but
because the state's delay in filing a petition for termination of parental
rights, in violation of ASFA, Danny and Frank have been, and continue
to be, irreparably harmed. Both boys were moved repeatedly and subject
to unsafe placements and are now placed in a shelter instead of an adoptive
JULIE R.: Julie R.
is a twelve-year-old girl who was removed from her home due to severe
neglect in 1995 and has been in foster care for over 65 months. Although
Julie has only seen her biological mother, at most, once a year, and
her mother has expressed no interest in regaining custody of her, no
petition to terminate parental rights was ever filed for Julie. Instead
she was left for five years in a foster home from which she had to be
recently removed because of the unsanitary and dangerous conditions
of the home. Julie, who suffers from developmental problems, has yet
to be placed in a permanent home.
to fulfill its obligations under ASFA amounts to a pattern, practice
and custom of deliberate indifference to the serious needs and federally
protected rights of the children who are members of the class action
lawsuit, Jeanine B. Wisconsin's then- governor Tommy G. Thompson, took
over the child welfare system in response to the Jeanine B. lawsuit
in January 1998, making the state directly responsible for providing
children in the system with appropriate placement, care, permanency
and other necessary services, and protecting them from harm while in
state custody. Thompson, as Secretary of Health and Human Services,
is now in charge of federal audits that have begun to examine child
welfare systems in each state. Wisconsin is scheduled to be audited
works throughout the United States in partnership with national and
local experts, advocates and government officials to document the needs
of children in the care of child welfare systems. Children's Rights
helps develop realistic solutions and, where necessary, uses the power
of litigation to ensure that reform takes place.
Children's Rights. (2001). Wisconsin judge rules foster children have
the right to sue state for speedy adoption under ASFA. Online <http://www.childrensrights.org/press/2001-0625.htm>.