January 19, 2007
North Platte Telegraph

A class-action lawsuit alleging that the state Health and Human Services system endangered 6,000 Nebraska children in the foster-care system was dismissed Friday by a judge.

U.S. District Judge Richard Kopf dismissed the class-action suit that alleged the state endangered children with an understaffed, underfunded and unresponsive foster-care system. It was filed in 2005 by New York-based Children's Rights, the Nebraska Appleseed Center for law in the Public Interest and several private law firms.

"This decision consigns Nebraska's most vulnerable children to an empty promise that the courts will protect them," said Jennifer Carter, staff attorney for the Appleseed Center.

"This is just closing the best avenue for legal relief for these children."

The center and other plaintiffs could appeal the decision to the 8th U.S. Circuit Court of Appeals. Carter said a decision has not yet been made.

Court precedent that says relief provided by federal courts should not interfere with the action of state courts was a basis for the decision. Children in foster care are involved in ongoing state court cases.

"Federal court injunctive orders against HHS would undermine and interfere with the Nebraska juvenile court's ability to exercise the full extent of its authority over juvenile court proceedings," the ruling says.

The lawsuit helped prompt state action to improve the system, including a series of directives issued last year by Gov. Dave Heineman. The ruling pointed out that the state is making efforts to improve the system.

The directives from Heineman focus on decreasing the length of time children spend in the system by achieving permanent placements earlier -- particularly for young children -- and freeing up resources to allow workers more time to focus on high-priority cases.

"The state has been making steady improvement from the end of the Johanns administration into this administration," said Aaron Sanderford, Heineman's spokesman. "We'll continue to make progress."

Problems in foster care partially revealed the need for a more nimble and accountable Health and Human Services system, now being sought by Heineman through a reorganization of the state agency, Sanderford said.

Nebraska continues to have one of the nation's highest rates of out-of-home placements per thousand children. In 2003, Nebraska had a rate of 13.8 children per 1,000 in out-of-home care, compared with the national average rate of 7.2 per 1,000, according to the Child Welfare League of America.

The lawsuit alleged that the state failed to address long-standing systemic problems such as a drastic shortage of foster homes, dangerously high caseloads for caseworkers assigned to monitor child safety, a lack of critical mental health services, the lowest "per diem" payments to care for foster children of any state in the nation and a lack of services and resources to get children adopted.

"The child welfare system is failing the children it is legally obligated to care for," Carter said.