Vol. 6, No. 1• November 2001

Wisconsin judge rules foster children have the right to sue state for speedy adoption under ASFA

(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 exception applies.

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.

"Judge Randa's 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].

"This decision 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 home.

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.

Wisconsin's failure 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 in 2003.

Children's Rights 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.

Source: 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>.


Copyright 2001 Jordan Institute for Families