Karen's 9/21/2005 Oral Comments in Kenny A Class Action

Oral Comments to Federal District Court Senior Judge Marvin Shoob by Karen Worthington, September 21, 2005

Karen's comments stressing safety concerns (5 minutes):

May it please the Court. I am Karen Worthington, Director of the Barton Child Law & Policy Clinic at Emory University and with me is the Clinic founder, Andy Barclay. We are going to divide the time allotted to the Clinic equally. I will be speaking to the first point our comments raise, the need for the settlement to ensure that children are not at greater risk of harm and Andy will address our second and third points, the need for outcome measures to improve system performance and to be tailored to provide accurate information about progress toward stated goals. His comments will respond to concerns raised in Plaintiffs' brief.

I have worked exclusively on children's law matters for the last 10 years with a particular focus on Georgia's child welfare system. My credentials are listed on page 5 of the Clinic's comments. Counsel for Defendants describes the Clinic as a university-based advocacy group and we are proud of our research-based advocacy for children. We are much more than an advocacy group, though: every year we supervise more than 30 law and social work students working in Georgia's child welfare system and we train hundreds of professionals in Georgia and across the country. Our post-graduate fellowships in law and public health attract applicants from the top schools in the nation.

The focus of my remarks is on the risk that the state could fully comply with the settlement but more children will be abused in their homes. The Clinic applauds the parties for reaching this settlement and agrees that it will lead to many benefits for children and a greatly improved child welfare system.

The settlement includes many items designed to improve permanency for children. Unfortunately, it does not include specific assurances to the Court that children's safety will be improved. With the push to achieve permanency more quickly and implement other systemic improvements, it is possible that children will be placed at risk of greater harm and this will not be reported to the court. A well-functioning child welfare system must focus equally on permanency, safety, and well-being. The proposed settlement is heavily weighted toward improving permanency outcomes but does not adequately ensure the safety of children.

The state could be in full compliance with the settlement without the Court knowing if children are being harmed more than they were before the suit was filed because there are not measures to capture recurrence of maltreatment. For example, a child with a substantiated case of abuse may remain at home. If there is a second substantiated case of maltreatment within a short window of time, that indicates that the system failed to keep the child safe, and could indicate a need for review of policy or practice. Likewise, if a child is found to have an unsubstantiated case of abuse, or is handled through the diversion program, a subsequent substantiated abuse is a primary indicator of whether the system worked to protect the child.

The Barton Clinic respectfully requests that the Court ask the Accountability Agents to include three indicators of child safety in their reports and to work with the parties to set appropriate outcome targets. The three safety measures that would help to assure the Court that the decree is improving safety for all children in the class are

  1. Recurrence of maltreatment in substantiated cases;
  2. Maltreatment following an unsubstantiated case or a diverted case; and
  3. The number of cases closed because a child has run away.


A critical indicator of whether the settlement adequately ensures safety for the class and prevents additional harm to children is what happens after a decision is made about a child's safety. If a decision is made that a child with a substantiated case of maltreatment should be left in the home and the child is again abused, the outcome of the decision is not greater safety for the child. On the other hand, if there are very low numbers of children with substantiated abuse cases following an unsubstantiated case or a case handled through diversion, then that is evidence that the risk assessment process is successful and children are kept safe from harm.

The information we are requesting is already collected by the Department so we are not imposing additional administrative burdens on the Department. We are just asking that this information be included in the Accountability Agents' reports and that targets be set for these measures.

I have just given examples of why the Court needs to be informed about cases in which substantiated maltreatment occurs after a Department decision not to take a child into care. I will now address safety concerns for children who are taken off the DFCS rolls because they have run away.

Parents are expected to know where their children are and whether they are safe. When we place a child in foster care, the state steps into that parental role. A parent cannot absolve herself of her duty to protect and supervise her child simply because she does not know where the child is. As the settlement stands now, the state could absolve itself of responsibility for children who run away by asking juvenile courts to relieve the Department of custody. In these situations legal custody is returned to the abusing parent from whom the child was removed and the location of the child may be unknown.

With incentives in the settlement to keep caseloads down and to achieve permanency more quickly, it is important for the court to know the reasons caseloads are decreasing. An increase in children who are removed from DFCS custody because they have run away may result in better numbers with regard to the outcome target of the decree, but is an indicator that more children are at risk of harm.

What I would like the court to come away with is that for the settlement to be fair, adequate and reasonable for the class, it must improve safety for children. Thank you for your time. I now turn to my colleague Andy Barclay.


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