DCS lawsuit details harm to children

Editor's note: This story has been updated.

Their names and ages invoke images of innocence, that these children are happy, well-loved and gleefully giggling at the arrival of summer. 

Ashley, 4, and Betty, 5, are sisters living in Delaware County, and Milo, 3, and Thomas, 5, are brothers living in Vanderburgh County. However, the youngsters were all alleged to have been abused by their parents and put in the care of the Indiana Department of Child Services, where they have suffered additional trauma, rotating through multiple foster homes and not receiving the medical and psychological care they needed.

These siblings and five other children are named plaintiffs in a civil rights lawsuit filed Tuesday against the DCS, claiming the agency is failing to protect children and further inflicting harm.

The complaint asserts the shortcoming of Indiana’s foster care system have been well-known for years, but the reforms made since the Child Welfare Policy and Practice Group issued its report in June 2018 have not brought substantive improvement.

In particular, the lawsuit alleges DCS is closing cases that are not ready for closure and are not investigating cases. Moreover, the lawsuit says, the state has not adequately addressed the shortage of appropriate placements for children, leaving some in inappropriate and sometimes abusive institutional settings for long periods of time.

The lawsuit is seeking to have the Indiana Southern District Court permanently prohibit DCS from practices that subject the plaintiffs to further harm and threaten their safety and well-being. Also, it is asking the court to order remedial relief to ensure the defendants comply with the law and provide the legally mandated services.

“Children come into the care of DCS having already experienced trauma,” Melissa Keyes, legal director of Indiana Disability Rights, said in a press release announcing the legal action. “The failure of DCS to protect these kids from further harm is unconscionable, especially when much of that harm is due to DCS’s own failings."

The Department of Child Services declined to comment, saying it has not yet been served with the lawsuit. However, the agency said, when it is noticed, its legal division will review the information.

Indiana Disability Rights, along with the New York-based child advocacy group A Better Childhood and the international law firm Kirkland & Ellis, filed the lawsuit on behalf of nine Hoosier children, ages 3 to 16. The plaintiffs say they are seeking to stop the violations of their constitutional rights and transform the state’s child welfare system.

Along with DCS, the complaint also names Gov. Eric Holcomb and DCS director Terry Stigdon as defendants.

Filed in the Evansville division of the Southern District Court, the lawsuit is Ashley W. and Betty W., et al. v. Eric Holcomb, et al., 3:19-cv-129.

“We have been deeply troubled the more we have studied the Indiana child welfare system,” said Marcia Robinson Lowry, executive director of A Better Childhood. "There have been years of expert reports, years of promised reforms, and minimal and intermittent movement forward, but the fundamental problems in this system do not change. Children are being very badly harmed by the lack of appropriate placements, by the erratic practices, and by the lack of a fundamental focus on the well-being of children. The way that Indiana is treating these vulnerable children is both unconstitutional and inhumane.”

A Better Childhood has filed similar lawsuits around the country, seeking to reform child welfare systems by lodging class actions against Minnesota, Oregon, Mississippi and the city of New York. While the group has claimed victory in New Jersey, it acknowledges efforts in other states have turned in disappointing results.  

Since filing a lawsuit in 1999, ABC claims it has entered into settlement agreements with New Jersey that have pushed the Garden State to restructure its system with increased funding and a trained and stabilized higher-quality workforce. But in 2018, the nonprofit found Oklahoma had not reached compliance with a 2012 settlement agreement, and in June 2019, it filed a motion asking a federal court to create a receivership to take control of Mississippi’s child welfare system.

The Indiana lawsuit details the history and treatment of the nine plaintiffs, including Ashley, Betty, Milo and Thomas.  

At the ages of 1 and 2, Ashley and Betty were hiding whenever their stepfather came home to avoid being subjected to his sexual abuse, the complaint says. DCS opened an investigation, learning of additional allegations of drug use and violence, but waited weeks to remove the sisters from the home.

First, the girls were placed with their uncle and then moved to their aunt before being put into emergency shelter care, according to the lawsuit. Two months later, the sisters began cycling through more than a dozen foster home placements during the next two years, including a few months living with their biological father, under whose care they contracted lice and ringworms, missed appointments and had unexplained injuries on their bodies.

Currently, Ashley and Betty are living in separate foster homes and see each other only at their weekly joint-supervised visits with their father.

Milo and Thomas are living together in foster care but are separated from their half-sister Caroline because DCS could not find a foster home to take all three children, the lawsuit says. Like Ashley and Betty, the three siblings have been placed in the care of multiple homes and under the supervision of a string of family case managers. One of the managers was fired after DCS discovered she was engaging in a sexual relationship with Caroline’s father and giving him advanced notice of drug screens, according to the complaint.

Sara, 14, is part of an Americans with Disabilities Act subclass of children with disabilities who either have been or are at a higher risk of being placed in overly restrictive, institutional settings, according to the lawsuit. DCS removed Sara from her home based on information her father was sexually abusing her. The agency placed Sara with her grandmother, but two years later, it reunited her with her father and the abuse began again.

After Sara called 911, she was placed in a series of foster homes and in a private behavioral health care facility, where she was reported to bang her head on the wall until she bled, the lawsuit says.

“That children with disabilities are being kept in overly restrictive institutional settings, that they are not being provided with adequate community-based services has certainly contributed to the developmental trauma these kids are experiencing,” Keyes said.

This is the second lawsuit filed over treatment of children in the Indiana foster care system.

In February, Children’s Advocacy Institute, based in California, filed a complaint asserting the Hoosier state is violating the constitution by not providing legal counsel to youngsters in children-in-need-of-services and termination-of-parental-rights proceedings.

That lawsuit, Nicole K. and Roman S. by next friend Linda R.; et al. v. Terry J. Stigdon, Director of the Indiana Department of Child Services in her official capacity, et al., 1:19-cv-01521, has been transferred from the Evansville Division to the Indianapolis Division of the Southern Indiana District Court. Most recently, Indiana has filed a motion to dismiss.