By Bryn Martyna
For 40 years, class action litigation has been used to address difficult and long-standing problems in state and county child welfare systems. A new publication brings together a series of papers authored by 22 top experts to address the factors that make system reform litigation successful. Those experts include Marcia Robinson Lowry, Executive Director of Children’s Rights, which has successfully litigated cases in many states, Paul Vincent, who has directed child welfare systems and provided technical assistance and monitoring in various states, and Kathleen Noonan, who has served as mediator in reform cases. This report combines many years of experience into a resource that should provide invaluable guidance for future efforts. As Noonan put it, "The lessons learned document is not only the best compilation of lessons about litigation involving child welfare agencies, but more importantly, a primer on system reform that will be useful to agency leaders and advocates alike."
NCYL Director John O’Toole and Senior Attorney Leecia Welch contributed a paper on their experience reforming Utah’s child welfare system. The report was commissioned and compiled by the Center for the Study of Social Policy (CSSP), with funding from the Annie E. Casey Foundation.
In 2008, after the successful conclusion of its child welfare reform case against Utah, NCYL and the Center for the Study of Social Policy convened a meeting of child welfare reform experts from across the country. The goal was to discuss ways in which they might share their collective experience in pursuing child welfare reform through class action litigation.
“It was exciting to be a part of such an accomplished group of academics, lawyers, child welfare leaders, and mediators,” NCYL’s Welch said. “The discussions were fascinating – presenting a range of perspectives and experiences.”
“For the Welfare of Children: Lessons Learned from Class Action Litigation” evolved from these initial discussions. It provides an extensive collection of viewpoints and reflections on the key challenges and opportunities that arise in reform cases, and suggests ways to anticipate and respond to those challenges. The goal of the report is to “increase the likelihood that litigation-driven reform will start on the right track, stay on track and ultimately succeed.”
The contributors include plaintiffs’ lawyers and defense attorneys, as well as child welfare administrators who have been involved in litigation. Other experts include court-appointed monitors of agency performance under settlement agreements. The articles cover all stages of litigation, from the initial decision to file, to the process for exiting from court supervision.
Many authors discuss the importance of data in understanding system problems and determining the appropriate path for reform. They also discuss how court orders can influence the pace and progress of reform, and how to structure them to achieve the best results.
Beginning with this article, Youth Law News will periodically highlight papers from the Lessons Learned publication. The first paper highlighted is by NCYL Director John O’Toole and Senior Attorney Leecia Welch about NCYL’s successful Utah foster care system reform litigation (David C. v. Leavitt ).
History of the Utah Litigation
“The idea (for the Lessons Learned report) grew out of our interest in studying and reflecting on the David C. case, both our successes and our challenges,” Welch said. “Litigation can be such a long and winding road, sometimes we forget to take a step back and reflect on what we've learned."
O’Toole saw the article about Utah as an opportunity to reflect on many years of hard work, and reflect on how Utah went from being one of the worst foster care systems into one of the best.
“It seemed like we should reflect on how it happened and explain what we learned to people who do this work.” O’Toole said. “To me, our experience in Utah is a compelling argument for the potential of litigation to be an effective tool in reform. But I learned a lot about what you need to be successful.”
Their article, “Litigation Leads to Sustainable Reform: A Case Study of Utah’s Success, tells the history of the David C. case, which NCYL originally filed in 1993. At that time, plaintiffs had tremendous evidence of the deficiencies in Utah’s foster care system. Plaintiffs had some initial successes in the courtroom, which led to a far-reaching settlement agreement finalized in August 1994. Plaintiffs were hopeful it would lead to lasting change. However, after the first three years, the system was still largely failing, and in some ways even worse.
At that point, the Court became actively involved again, ordering the monitoring panel (which was established by the original agreement) to create a comprehensive plan for changes the agency agreed to in the settlement agreement. To assist in this effort, the parties jointly brought in outside experts to provide critical technical assistance, including data on almost 1,500 cases. This led to development of a new settlement agreement and implementation plan known as the “Milestone Plan,” which was based on social work knowledge and values. This was in contrast to the original settlement, which was focused on legal requirements and compliance. The Court was an important force in moving the reform effort forward, expressing its intention to “hold defendants’ feet to the fire regarding systemic reform and not allow them to continue some of the foot-dragging tactics of the previous four years.” At the same time, the Court made it clear that flexibility in implementing the reforms was critical, and it would be open to changes in approach if necessary.
The Milestone Plan, published in May 1999, eventually brought about significant improvements in how the system operated and the outcomes for children and families. However, the defendants first spent two more years fighting in court in an attempt to end court oversight. Defendants lost on virtually every issue, and were ordered to reimburse plaintiffs their attorneys’ fees for the time spent addressing defendants’ legal challenges. Following this defeat, defendants brought in new attorneys, and the parties began on a path of collaboration. However, during this time period, the system still showed lagging progress – this, along with significant budget cuts, led NCYL to seek court intervention again in August 2002.
At that point, the Court ordered the parties to work together to address priority areas identified by the court monitor. This was an alternative to simply imposing a detailed order on defendants. For the next few years, the parties focused on implementation of the agreed upon reforms, including multiple modifications of the Milestone Plan.
Finally, the legal battles were over. Personnel involved in almost all aspects of the lawsuit also changed; there were new teams of lawyers on both sides, and a new leader of the Utah Department of Human Services. By mid-2007, substantial improvements had been made to the foster care system. In May 2007, the parties agreed to terminate the lawsuit in December 2008, with a plan to phase out court and monitor oversight. The accomplishments of the reform effort were far-reaching. They included improvement in speed of abuse and neglect investigations, low caseloads, regular caseworker visits to children, timely and appropriate health care services for children, and more rapid movement to permanency for foster children. Utah’s data management system and quality case review process had also developed into models, praised and emulated by child welfare experts across the country.
Lessons Learned from the Utah Reform Effort
Welch and O’Toole offer the following lessons learned from the Utah litigation:
- Manage expectations about the pace and pitfalls inherent in reforming large bureaucracies;
- Develop an effective team to advocate for plaintiffs and move reforms forward;
- Pay attention to how the settlement agreement is structured and implemented;
- Rely on outside expertise;
- Understand the role of the judiciary in advancing reforms;
- Evaluate the political will and internal capacity to move reform forward; and
- Remember: sometimes you get lucky and sometimes you don’t.
The paper expands on each of the above lessons, using insights from both authors’ experiences over the 14 years of the Utah litigation. They said the hard work begins once a settlement is signed, and people who are part of the system may resist. Advocates’ persistence is critical and reform may take years to achieve.
With respect to the actual settlement agreement, the first settlement had certain shortcomings that hampered its success: 1) the lawyers were the driving force and the agency people charged with implementation felt little oversight; 2) it was overly focused on process at the expense of outcomes for children; 3) it lacked a requirement that the agency develop a new practice model with new policies and trainings to translate the reforms into action; and 4) it did not properly emphasize system transparency and analysis based on good data.
In contrast, the later plan, developed carefully together with the agency, included: 1) a phased-in approach with agency ownership over the process; 2) focus on improving outcomes for foster children and their families; 3) provisions for policies, training and mentoring for staff; and 4) requirement of rigorous qualitative case reviews and other data to measure improvement.
Welch and O’Toole also emphasize the importance of bringing in outside experts to assist both in development of a remedy and oversight of implementation. They note that the “strength-based approach, similar to the type of approach most successful in working with families” used by the outside expert in Utah (Paul Vincent) was particularly effective.
While noting that parties have little control over the judge assigned to their case, understanding the role of the court and its likely role in settlement implementation is key in shaping any potential settlement agreement. In Utah, the judges ended up playing a particularly crucial role in achieving reform. They recognized the need for a comprehensive plan for reform, the importance of retaining an outside expert to monitor the reform, and the necessity of having buy-in from defendants. Similarly, the authors recommend that child welfare advocates assess the political will and internal capacity for a large-scale reform effort. Finally, some element of luck will always play a role, and “[g]iven the inevitable bumps along the way, effective advocacy requires commitment, flexibility and taking advantage of each opportunity to advance the ultimate goal of ensuring that children are safe and have the greatest possible chance to reach their full potential.”