Analysis Human Rights

Lawsuit: Foster Children in Kansas Forced to Sleep in Office Conference Rooms, Hospitals

Lisa Needham

Without a doubt, children cannot thrive in such a setting. Indeed, they can barely survive.

An extraordinarily damning class-action lawsuit that has just been filed in Kansas alleges that the state’s foster care system is so broken that children are functionally homeless and in near-constant mental health crises.

The grim state of Kansas’ system received statewide attention recently when a 13-year-old girl was reportedly raped while she was staying overnight in one of the state’s child welfare agency offices. According to the lawsuit, this is not uncommon. Children in foster care in Kansas are routinely housed in office conference rooms, hospitals, and other nonstandard housing situations because Kansas lacks adequate housing resources for the foster care population. Partly because of that, children are moved from one place to another, sometimes as often as every night. This extreme transience doesn’t just destabilize the home life of these children. It also destabilizes their mental health.

The ten plaintiffs in the class-action lawsuit are all children that are currently in the foster care system in Kansas. But the lawsuit is brought on behalf of all children in foster care in the state who are similarly situated. The defendants are Jeff Colyer, the current governor of Kansas; Gina Meier-Hummel, the current head of the Kansas Department for Children and Families (DCF); and the heads of the Department of Health and Environment and the Department for Aging and Disability Services.

The stories of the plaintiffs are harrowing. One is a 10-year-old child who has already been shuffled to 70 different placements. For three months, he was moved nearly every night. Another is only 6 years old and is in a mental health crisis, but is not receiving any ongoing services, save for being hospitalized when his mental health severely deteriorated. Another 15-year-old has been housed in five separate counties in the past seven months.

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Without a doubt, children cannot thrive in such a setting. Indeed, they can barely survive. Other plaintiffs have diagnosed instances of traumatic stress or such profound disruption of their access to education that they are basically no longer attending school.

Perhaps worst of all, one 17-year-old girl who had been removed from her home because her adoptive father and adoptive brother repeatedly sexually assaulted her, was then moved between 42 placements. In one of those 42 placements, court documents say she was the victim of sex trafficking. One of her many placements was in a child welfare office, where she was forced to stay overnight. While there, the lawsuit alleges, a staff member physically assaulted her, but the agency continued to make her stay in the agency office.

The plaintiffs brought the lawsuit on behalf of the 7,530 children currently in protective custody in foster care in Kansas. Children in protective custody are those children who are not currently placed in a long-term stable foster setting. That group includes a subset of even more vulnerable children: minors in foster care that have serious mental health needs. In 2016, Kansas reported to the federal government that over 3,000 children in out-of-home care were identified as “emotionally disturbed.” Therefore, the lawsuit argues, it is likely that an equal number of children in protective custody also suffer mental health challenges.

The lawsuit says that Kansas is failing to provide what is known as substantive due process under the 14th Amendment. When a child comes into foster care, they are in the custody of the state. Because of that, the state has a duty to protect that child from harm and the risk of harm. Kansas has, the plaintiffs charge, failed to do so.

Next, the lawsuit alleges Kansas is in violation of Medicaid requirements. Kansas accepts Medicaid funding, which means it has to provide all Medicaid-eligible children with health and behavioral screening, health care, diagnostic services, and other treatment measures if a child has a behavioral or emotional condition. Any child in the protective custody status of foster care is automatically eligible for Medicaid and all the related services. Plaintiffs say, however, that Kansas does not provide children in foster care with proper mental and behavioral health screening, nor, the plaintiffs say, does it provide mental health care to children. In fact, the suit alleges, the foster care system puts children in situations that can exacerbate or lead to mental health problems.

Without question, the problem here is a problem of the state’s own making. Kansas began privatizing its foster care system in 1996. According to the lawsuit, “churning”—the process of rapidly moving children from placement to placement, with no stable residence—dates back almost 20 years. In other words, almost since the beginning of the privatization efforts, Kansas’ foster care system has been under-resourced. In the last six years, Kansas completely gutted care for children with acute mental health issues, decreasing the available number of beds in treatment facilities by 65 percent.

Right now, DCF contractors have excessive workloads and high turnover, DCF itself isn’t well-equipped to oversee those private contractors, and no one is accurately maintaining data. And these aren’t new problems. They date back several years and led to the resignation of the previous DCF secretary just last year. Still, DCF is failing to hold contractors accountable and has issued only two improvement plans to private contractors in the last 20 years and has only financially penalized a private contractor once—ever. Data management is sometimes so poor that DCF auditors can’t even tell if monthly oversight visits with contractors occurred.

And the children are the ones being left behind. As the lawsuit notes, when children don’t know where they will be living or sleeping and are receiving piecemeal health care at best, or no health care at worst, they are functionally homeless—regardless of the fiction that the state is caring for them. Besides all the additional challenges that can arise, the act of “churning” itself, as it is a form of extreme housing disruption, can contribute to post-traumatic stress disorder, attention deficit hyperactivity disorder, and substance abuse.

Even for children not currently experiencing a profound mental health crisis, the instability is profound and debilitating. Some of the plaintiffs in the lawsuit have been moved upwards of 100 times in the last two years. From night to night, they may have no idea where they will sleep, and because Kansas has inadequate housing, they may spend multiple nights sleeping in offices. Sometimes they couch surf, because Kansas authorizes private DCF contractors to pay existing foster parents some additional money to let a child sleep on their couch for one night.

On top of this, these children are often in profound danger. They are placed in unsafe, overcrowded locations. They rarely attend school. Frustrated by their placement situations, they run away. Those children that run away are in perhaps the greatest danger. Officials regard Kansas as a known crossroads for sex trafficking—and a foster care-to-trafficking pipeline is, regrettably, also well-known.

All of these shortcomings lead to a violation of the rights of the children in the foster care system.

In order to rectify these issues, the plaintiffs are requesting a permanent injunction that would stop Kansas from churning foster care children. They also request that the state be required to conduct a workload study to see what an appropriate caseload would be and to ensure that caseload allows for appropriate oversight and monitoring. Next, they want increased staff hiring and retention to ensure those workloads stay manageable. They also demand better direct oversight of private providers, including better data management. Finally, all children in foster care must receive mental and behavioral health screening and, if necessary, the appropriate and necessary mental health treatment.

Fixing all of this will take a much greater appetite for oversight and much more money. But one thing is certain: The children in the foster care system in Kansas deserve far, far better than what they have now.

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