Nobody's Children 

The Tennessee foster care system isn't working. Unless we fix it, we'll all reap the consequences.

PHOTOS BY TREY HARRISON

"Children don't vote, foster children don't have a powerful lobby working for them. These children don't have a voice."

-- Ira Lustbader, attorney for Children's Rights, Inc.

Every day many of the more than 11,000 foster children in Tennessee are sucked into a fierce downward spiral. Their lives deteriorate, their futures obliterate, their options dissolve. As you read this story, many of these children are being beaten, raped, and shuffled from home to home. They are being medicated into trances with psychotropic drugs or denied the psychological treatment necessary for them to retain a semblance of sanity. The foster care system in Tennessee devours childhoods, in some cases literally raping, killing, and permanently handicapping children, and turning others, the comparably lucky ones, out onto the streets with no money, no support system, and little hope.

As wards of the state, these are Tennessee's children. As Tennessee citizens, we are responsible for their well-being. Yet many of these children have never lived in homes where they were safe from abuse. Many of these children have never slept undisturbed. All of these children want to live in safe homes with loving parents, but very few of them ever will.

The state of Tennessee removes infants, toddlers, youths, and teens from nightmarish horrors -- forced prostitution, rapists, guardians who use burns as punishment, parents who withhold food for days -- evils we'd like to think are not possible in our state. This first step is a positive one, but too often these children are then placed into situations that are just as bad, and sometimes worse. The hope is that these children will grow up to be responsible adults. But it shouln't be surprising that the children we abandon to a flawed foster care system grow up to become rapists and murderers themselves. Many will join gangs or become thieves, welfare mothers, or dementia-addled homeless beggars. The system is failing. And in the long run it is we who will pay the price.

Charles

Charles will never be normal. He spends his waking hours peering out from underneath a helmet worn to protect him from himself. It's a bitter irony. After years of being victimized by others, Charles' brain now compels him to abuse himself.

Seven-year-old Charles was healthy and normal until a Department of Children's Services (DCS) case manager suggested he be returned to his crack-addicted mother. The reunification attempt left him permanently brain-damaged and physically and developmentally handicapped after he ingested his mother's crack and went into a violent seizure. Worst of all, Charles was doing fine before DCS sent him back to hell.

Charles was originally removed from his mother's custody at birth, when he tested positive for crack cocaine. He was placed in the same foster home in Shelby County as four of his other siblings. They lived this way until Charles was 5 years old. At that time he was in a regular kindergarten class, and despite some behavioral and emotional difficulties resulting from being born addicted, he was progressing normally.

Though their mother continued to smoke crack, DCS took Charles and his 4-year-old sister from their foster home and returned them to her custody. The children and their mother were not monitored by DCS, and soon after being returned, Charles ate some of his mother's crack and went into the seizure, suffering massive and permanent brain damage.

After the seizure, DCS removed Charles and his sister from the home. His sister was returned to the original foster parent, but because of his new handicapped status, Charles could not go back. Instead, DCS moved him in and out of several foster homes before placing him in permanent therapeutic care.

Besides being a child with a heartbreaking story, Charles is a named plaintiff in a lawsuit brought against Governor Sundquist and the state of Tennessee by Children's Rights, Inc. (CRI) -- a non-profit child advocacy group headquartered in New York. The suit, known as Brian A. v. Sundquist, was also filed on behalf of all 11,300 children in Tennessee's substitute care system. It is patterned after suits filed by Children's Rights, Inc., in other states and cities, including Connecticut, New York, New Mexico, and the cities of Washington, D.C., Philadelphia, Kansas City, and Milwaukee.

The outcome of this case could be dramatic. Most likely the parties will reach a settlement agreement, the court will issue a consent decree, and DCS could be held in contempt if it does not comply with the decree. In the extreme, Tennessee could lose the right to operate its own system. This is what happened in Washington, D.C.

In 1995, a federal court judge determined that the District of Columbia was so negligent in operating its foster care system that the entire system was taken out of the district's control and given to a private receivership. Four months after the court-appointed receiver took control he and his staff were still trying to account for all of the children living in state custody, as well as for how the budget was being spent. Before taking control, the receiver estimated that there were about 2,000 children in the district's foster system, only to later discover 9,000 active files on children in custody. The receiver also discovered that many of the abused and neglected children had been mistakenly brought into state custody in handcuffs and then treated as juvenile delinquents.

For now, Federal Court judge Todd Campbell, who is presiding over the Brian A. v. Sundquist case, has ordered the parties to try to reach a settlement agreement.

"We are fully prepared to take this case to trial to get a court order demanding that these changes occur," says Ira Lustbader, lead counsel for CRI in the Tennessee case. "In the worst of situations [DCS] can lose the authority to run their system. Or they can be held in contempt to comply with the federal court demands in a way that, frankly, they have not done on their own."

Carla Aaron, public information officer for DCS, told the Flyer that DCS was prevented from speaking to the media because Judge Campbell had issued a gag order. However, clerks in Judge Campbell's office told the Flyer on two separate occasions that no such order had been issued. At press time Aaron again refused to comment and Judge Campbell had still not issued a gag order. Representatives from Governor Sundquist's office did not return repeated calls from the Flyer.

State officials have known for years that the foster system in Tennessee is dangerous to children. In 1998, DCS's flaws came to the attention of state Representative Tommie Brown. At that time Brown asked the Tennessee Comptroller of the Treasury to conduct a study on the children in state custody. Many of the allegations cited in CRI's complaint are drawn directly from the comptroller's study and from a report created in 1999 by the Child Welfare League of America (CWLA).

"After 10 or more years of failed efforts, we've come into play," says Lustbader. "This is not a novel, early-on move. This is the last effort to force changes where other methods have failed. There is no doubt that Tennessee is among the worst states in the country [for foster children]."

Lustbader says that CRI decided to file the lawsuit in Tennessee after independent children's advocates across the state began contacting CRI with evidence of "frightening, systemic problems." CRI conducted an investigation, sending field-workers out to speak with birth parents, foster parents, children, workers at private agencies, judges, and DCS caseworkers who had recently quit working for the agency.

"We found consistent, fundamental problems everywhere," says Lustbader. "We identified the individual children who were later named in the plaintiff's case. These children's problems represented the collective problems of all the children currently in state custody. Unfortunately, their circumstances are not isolated or unique."

JACK

Jaded and callous, Jack has no roots. For most of his young life he has spent no more than six months in any one "home." After 11 years in state custody, the 14-year-old has had 23 different homes, 23 guardians, 23 sets of foster "brothers" and "sisters." He currently lives in a Shelby County group facility, and he knows that his 24th home is forthcoming.

Living in the group home, Jack has suffered a dislocated knee, torn ligaments, and countless bruises at the hands of the facility's staff, who have improperly restrained him during his emotional outbursts. Jack has attended a string of schools, made and abandoned friends, and each time he settles into a new environment he is uprooted again.

Because of the frequent moves, it is unlikely that Jack will ever enjoy what many of us take for granted: friends, romantic involvements, a successful marriage. Studies and statistics show that children are permanently emotionally damaged after only four placements, especially if their moves began at a young age like Jack's. After 23 placements, Jack may never form emotional bonds with anyone.

He has been legally free for adoption since 1996, when his biological mother's rights were terminated, but DCS has not found a permanent home for him. He is an angry child, filled with hatred and frustration for the system. He desperately wants parents and a permanent home and has been writing poems and songs lately that speak about being "tossed around" and "stepped on." In one poem Jack writes that he would "rather be dead."

"What's happening is kids are getting stuck," says Lustbader. "They're languishing in foster care. In Tennessee there is an alarmingly high percentage of teenagers in foster homes. There is also a shocking number of children who have been in 10 or more placements. Twenty-three percent of the children in Tennessee's system have had 10 or more placements. As children get passed around they become more and more damaged and adoption eventually becomes impossible."

Jack will probably never be adopted. At 14, he's too old, and furthermore he's black, facts that, sadly, condemn him to a life of multiple placements. As African Americans in Tennessee's system, Jack and Charles will stay in foster care 32 percent longer than most white children do. Tennessee does not maintain records that specifically show the length of time spent in care by race, but a Children's Program Outcome Review Team (C-PORT) report commissioned by the Tennessee Commission on Children and Youth (TCCY) does show the discrepancy. According to the study, African-American children between the ages of 12 and 17 are twice as likely as white children of the same age to be in state custody. One of CRI's allegations in the Tennessee case is that DCS does not try to place African-American children as aggressively as it does white children.

Children like Charles and Jack are what author Jennifer Toth terms "orphans of the living," a phrase she uses as the title of her book. And in Shelby County the vast majority of these orphans are African-American. Statewide, black children account for 39 percent of all kids in foster care, though they represent only 21 percent of all children in Tennessee. The statistics are even worse nationwide. Nationally, though African Americans account for only 15 percent of those under 18, they represent 49 percent of all children in foster care.

TRACY

Tracy has spent much of her life moving. She first entered state custody when she was 4 years old, after she had been sexually abused by her father. At that time DCS placed her in four homes in four years and then decided to reunite her with her biological mother. In May 1999, Tracy's mother physically abused her, and she and her siblings were again removed from the home.

Now 13 years old, Tracy has lived in 15 homes in a single year. Her 13-year-old brother Jeffrey has fared even worse. He was raped by several other children in the foster home where he was placed and then was left in that same home for six months after the rapes first occurred. When he was finally removed, he was placed in a wilderness camp where he was abused by a staff member until DCS returned him to his mother's custody. Tracy's oldest brother, 17-year-old Jerry, has been bounced between delinquency detainment and foster-care placements.

Tracy and her brothers' stories are far from surprising to persons familiar with DCS in Tennessee and with similar agencies in other states. Recognizing that foster-care systems nationwide often do more harm than good, some caseworkers elect to leave children in their biological homes. These caseworkers have even said that if a child's life is not in immediate danger in the natural home, they will leave the child there, even in cases of abuse. They reason that at least in the natural home the horrors are known.

A study conducted in Baltimore, Maryland, showed that reports of abuse were three times more frequent in foster homes than in biological homes. The same study found that the rate of physical abuse was seven times greater in foster homes than in biological homes.

Denise

Denise was removed from her mother's custody at birth due to abuse and neglect. Now 8 years old, she has lived in the same foster home for her entire life. Denise has not yet been adopted because up until a few months ago she had never seen a DCS caseworker.

Though Denise was freed for adoption more than five years ago, DCS has not taken steps to secure a permanent home for her. She currently lives with five other foster children and two adopted children in a foster home. DCS has placed as many as 15 children in her home at a time and only recently asked the foster mother if she would be interested in adopting Denise. Though the number of children already in the home would make this difficult, the foster mother has inquired to see if any financial or therapeutic resources would be available if she were to adopt Denise. DCS has not responded. In the meantime, Denise waits to see if she will ever have a real, permanent parent.

Shocking though these stories are, DCS caseworkers are not entirely to blame. Caseworkers in Tennessee, with a starting annual salary of $20,184, are among the worst-paid in the nation. These caseworkers are on call 24 hours a day, seven days a week, working to fix problems that often have no solution. Turnover is high, and in 1999, 23 percent of DCS caseworkers had less than one year's experience. Even among the more experienced, the scant three weeks of training the workers receive scarcely qualifies them to determine the fates of children. The average Tennessee caseworker will manage about 45 cases at a time, making it impossible to investigate each case. By contrast, the Association of American Social Workers recommends caseworkers work up to seven cases at a time. Likewise, the Child Welfare League has specifically recommended that Tennessee decrease caseloads to 25 per caseworker. This would mean that Tennessee would have to add more than 120 new caseworkers.

Additionally, the bulk of the problems with the substitute care system in Tennessee stem from using an antiquated system to address modern problems. The current system was designed to provide shelter only for true orphans -- the surviving children of deceased parents. Tennessee's system was not designed to help the majority of the children in foster care today, who have at least one living parent who can't or won't care for them.

A 1990 study of foster-care systems in 19 states revealed that 46 percent of the children in custody were there because child protective service workers found them living in dangerous or abusive circumstances. The same study showed that just over 20 percent of the children were placed in foster care because their parents experienced financial hardships, incarceration, illness, handicaps, or were dead. About 13 percent of the children were placed in custody because of a troubled relationship with their parents. About 2 percent were there because the children were handicapped, and about 1 percent were placed in custody because their parents simply didn't want them anymore.

Brian

For 10 months last year 9-year-old Brian didn't belong anywhere. Each night he curled up with a blanket and pillow that weren't his own, in a house he didn't really live in, with guardians who weren't really his. The roof over his head was that of a Shelby County temporary placement home. Though policy dictated that Brian could only stay in the home for a maximum of 30 days, he got stuck for almost a year. With nowhere to go, no one who wanted him, and no plans for his future, Brian's only option was to wait out the days and hope that a DCS caseworker would eventually remember that he existed.

In 1996, Brian and his five siblings were removed from their home because Brian's drug-addicted parents were essentially using the children as punching bags.

Brian had been beaten daily for most of his life, and it continued when he came under DCS's watch. After being removed from his first foster home for behavioral problems, Brian told a counselor that the foster parent had routinely beaten him with a walking cane.

Brian's behavioral problems worsened and he tried to run away from his next home several times. DCS workers told his then-foster parents that he would be removed from their home and placed in a therapeutic foster home so that his special needs could be better addressed. Instead, he was placed and forgotten in the grossly overcrowded "temporary" home that took nearly a year of his young life.

Because Brian had not been officially placed in a foster or adoptive home, he was ineligible for state services, including schooling and health care. He languished, nobody's child, another victim of the nameless, faceless system that is robbing thousands of Tennessee's children of what should be an inalienable right -- a safe, decent home with responsible care providers.

In addition to being a real kid without a real guardian or a real home, Brian is another named plaintiff in the CRI lawsuit. Because of his status as a minor, all other details of Brian's life, including his full name, are not available. However, state reports show that life in temporary placement facilities sometimes consists of children (in this case, boys) sharing space with more than 20 others. During a period beginning in September 1998 and ending in March 1999, almost 500 children were in temporary DCS placements. About 40 percent of the children in temporary placements at that time had been there longer than the permitted 30 days.

In these facilities, "school" means gathering Brian and the other boys -- ages 6 to 16 -- into two classrooms where they are taught by two instructors. Some of the children have been removed from their homes because they were accused of violent crimes and sexual assault. Others have been removed because they were victims of violence and sexual abuse. In the words of one judge quoted in the Tennessee comptroller's report, "It's like mixing predators with prey."

DCS does not separately monitor or report abuse of dependent and neglected children while they are in state custody. The data currently available from the agency does not distinguish between the victim and the abuser, nor does it specify the type of abuse, the placement of the victim at the time of the abuse, the characteristics of the victim, or the outcome of the investigation. Because the information is not tracked, DCS officials do not know how many children are suffering while in the department's care.

Though Tennessee does have laws that prohibit the placement of abused and neglected children in an institution designed to hold delinquent children, no laws prohibit the placement of dangerous children in temporary facilities designed for abused and neglected children. Moreover, DCS does not monitor or report the extent to which child-on-child abuse or other violent incidents occur while children are in state custody. The agency is, in effect, looking the other way while kids beat up and rape each other.

At first glance the children living in Shelby County's temporary shelter look like any other children. Upon closer inspection their silence begins to seem eerie, their dirty, tear-streaked faces come into focus. One child pleads quietly, "I just want to go home."

These children, mostly toddlers, spend their days with a guard, watching television and taking naps just a few doors down a fluorescent-lit hall from Shelby County's female juvenile offenders. They enter the shelter filthy and terrified, having been removed from nightmarish situations only hours or days earlier. In the shelter these innocent kids huddle together, sometimes electing to sleep two or three to a bed, doing their undeserved time and waiting to be returned to their parents or placed in foster care.

"It's a chaotic and dangerous system," says Lustbader. "Children are removed from dangerous situations and placed in a foster-care situation which damages them further. Too many children are losing their childhood to foster care."

Though federal and state laws require that all children in custody receiving TennCare aid receive Early and Periodic Screenings, Diagnosis, and Treatment (EPSDT) evaluations within 30 days of entering state custody, children in Tennessee's foster system do not. EPSDTs are used to determine the physical and psychological needs of the children. However, a sample group of children under DCS care showed that 58 percent were in need of mental-health help and 34 percent had been sexually abused and needed, but did not receive, counseling.

Dr. Charles Glisson, director of the Children's Mental Health Research Center at UT-Knoxville (and himself a DCS consultant), has shown that the majority of the children entering state custody were in need of clinical intervention, yet only 14 percent were referred for mental-health services. According to Glisson, "Most children who enter state custody, regardless of cause or placement, have psychosocial problems that require clinical mental-health services."

Amy

Amy is a 16-year-old whose father used to beat her by throwing a mattress on top of her and kicking it. She has been in state custody since 1997, and since entering custody, Amy has been in 14 foster-care placements. Now, predictably, Amy exhibits severe emotional problems. Currently she is living in a Level III DCS facility in East Tennessee's Knox County, where presumably her emotional needs are being better addressed.

However, she has only recently been moved to the Level III facility. Before, as Amy's emotional problems increased, she was bounced from one foster placement to another. She has now been through three expensive, 30-day diagnostic and evaluation stays that could have been avoided if DCS had not misplaced Amy in foster and group homes.

During one of her stays in a Level II facility, Amy was placed on heavy medication which made her hallucinate and hear voices that told her to hurt herself and others. After her hallucinations were made known, DCS moved Amy to a hospital for a five-day evaluation and then back to the Level II facility, where her condition only worsened. The hallucinations increased, her hygiene suffered, and her weight ballooned from 115 to 240 pounds, most likely due to the medications she was prescribed. She was moved to a hospital for a 30-day evaluation, where it was determined that she was emotionally disturbed and that the medications were only making her condition worse.

During this evaluation, Amy was visited by a Court-Appointed Special Advocate (CASA) volunteer who found her living in a dirty room with food and garbage strewn about. The CASA reported that Amy was so over-medicated that she was slurring her speech and could barely form words. Her obesity was also being ignored by the hospital staff.

Amy's situation is not unique. One juvenile court judge interviewed for the comptroller's report believes that children in custody are not only being denied services and treatment, but that DCS is actively discouraging certain types of treatment even when need is clearly demonstrated. This judge said that DCS has told community mental-health centers not to recommend foster children for inpatient care.

Bureaucratic Bungling

Many of Tennessee's children could be adopted much sooner if the state had the legal resources to expedite the adoptions and employed policies to move children through faster. Several states have begun using a system that allows for both the termination of parental rights and the adoption proceedings to begin simultaneously. This method prevents children from spending unnecessary time in limbo after parental rights have been terminated but before the adoption is finalized. Tennessee has not implemented this system.

In the past, DCS has not had enough attorneys to handle the termination of parental-rights hearings rapidly. Results from a 1998 C-PORT study show that approximately 10 percent (over 1,100) of the children in custody were currently ready and waiting to have parental rights terminated, all they lacked was a lawyer. In September 1998, 7,219 active cases were handled by only 16 attorneys -- that's more than 400 active cases per lawyer. Caseloads are expected to only increase as Tennessee begins adhering to the Adoption and Safe Families Act, which was signed into law in 1997. This act requires that if children have been in foster care for 15 of the prior 22 months, DCS must either terminate parental rights or reunite the children with their families. As is evident in the accounts of the children mentioned here, DCS is not in full compliance with this act. Funding was allocated in the 1999-2000 budget to add 36 new attorneys statewide, but DCS would not tell the Flyer if additional attorneys had been hired.

Charlette

Five-year-old Charlette has seen and done things that would make most adults shudder. Her biological mother is a prostitute, and while in her mother's custody, Charlette and her brother John frequently watched their mother turn tricks. The children were also forced to watch pornographic movies, and the men who had sex with their mother often had sex with Charlette and John, too.

Without first investigating the situation, DCS placed the children with their grandparents. Things didn't get any better in the grandparents' home, where Charlette and John were sexually abused by their grandfather and uncles. DCS then removed the children from the grandparents' custody, only to inexplicably place them again with their mother, where again they were abused and again they were removed, before finally being placed in a foster home.

Charlette has been prescribed medication to help her sleep at night and to assuage her recurring nightmares but has not been provided with counseling or therapy. As one might expect, her brother John exhibits sexually aggressive behavior, often toward Charlette, but also has not received any counseling or therapy.

The two children were freed for adoption in 1999 but adoptive homes have not been found for them. Charlette's foster parents have told DCS that they would be interested in adopting both of the children if DCS can provide some assistance for the children's expensive psychological needs. A full year has passed since the foster parents made the inquiry, and DCS has still not responded. While the foster parents wait to see if they can afford to take Charlette and John, the children also wait, fearing that they will be moved again.

Criticisms of Children's Rights, Inc.

Not everyone working within the foster-care system believes that a federal lawsuit is the best way to solve the state's problems. Some think that, though Tennessee's problems need to be fixed immediately, a federal lawsuit is premature.

"My sole objection to the federal lawsuit is the timing," says Dan Michael, executive director of CASA for Shelby County. "I have no problem with CRI and I don't argue that there is a huge problem with foster care here in Tennessee, but I do not think that the lawsuit is ripe. CRI seems to be coming in on the heels of a genuine effort by the state to fix the problem."

Michael says that CRI's suit was filed soon after the Child Welfare League of America (CWLA) reported its findings to the state and that DCS had already been seeking funding and begun implementing some of the CWLA's recommendations when the suit was filed.

"If two years after receiving the CWLA's recommendations DCS had done nothing, then I would probably be one of the first parties joining in on the lawsuit," says Michael. "Now DCS's legal resources are being tied up trying to settle this federal lawsuit instead of focusing on addressing the issues in Tennessee."

Lustbader and the attorneys he is working with, who include Richard Fields, John Pierotti, and Robert Hutton in Memphis, remain unfazed.

"If nothing else, we've managed to open up an otherwise closed system," says Lustbader. "Before a federal judge ordered it, this information was not available, no one really knew how bad it was. The problems we've found are as great, if not worse, than the ones we identified in the complaint. They are all being borne out."

Lustbader says that regardless of the outcome of the settlement discussions, CRI's lawsuit will help make the daily lives of Tennessee's approximately 11,300 foster children more tolerable. He contends that at least now the hellish situations they live in are known.

Terry

Terry is an 18-year-old girl who was recently discharged from the foster-care system, ill-prepared for life on her own.

While in substitute care, Terry was diagnosed as having bipolar disorder and was heavily medicated with several psychotropic drugs, which caused her to sleep most of the day.

Besides not having emotional stability or life skills, Terry's medication often caused her to sleep through school hours. Being frequently moved from placement to placement caused Terry to fall even farther behind in school. She does not have a high school education and will most likely face difficulty in securing employment.

Sadly, Terry's story fits easily into the statistics. Once in the system these children have a greater chance of becoming homeless, getting pregnant as teens, dropping out of school, or being incarcerated than they do of ever being adopted.

Nationally, 40 percent of foster children will enter either the welfare rolls or the prison system within two years of leaving the foster-care system. Only 17 percent will become completely self-sufficient two to four years after leaving substitute care. Similarly, only 49 percent will be gainfully employed as adults and almost 60 percent of the girls will give birth within two years of leaving the system. Former foster children are three times more likely to be homeless than parented children are, and most metropolitan areas report that 30 to 40 percent of their homeless population have passed through their foster-care system.

"What gets lost in the thought process is that it is ultimately less costly to provide resources at the front end," says Lustbader. "Otherwise the children can become strains on other state systems, criminal justice, welfare, and they could have their own children that enter state custody. It's a cycle."

Whether or not CRI's actions are appropriate, the fact remains that thousands of children are growing up in Tennessee without any support or guidance. Many of these forgotten kids will never see their names written on a birthday cake, never attend their prom, never graduate from high school. Many have only a garbage bag to carry their second-hand clothes in when DCS moves them time and again. For these children college is as real as the tooth fairy, love as distant as the moon.

Simply sleeping safe from sexual predators and physical abusers is as much as they can hope for, and even at that we fail them. These children -- kids like Charles, Jack, Tracy, Denise, Brian, Amy, Charlette, and Terry -- slip through the cracks while we look the other way. Often born into abuse and poverty, we "rescue" them only to make their lives worse, and then we imprison them years later when they act on what they've learned under our watch. They are orphans of the living and every day of their lives is worse than the day before. Each day they grow older, more callous, and less likely to ever have a place to call home.

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