Lawsuit: Gov. Haley, DSS agree to give more protection to foster children

By John Monk and Jamie Self
The State

Under pressure from a federal class action lawsuit, Gov. Nikki Haley and S.C. Department of Social Services Director Susan Alford have agreed to make major changes in how South Carolina’s foster children are protected by the state’s child-welfare agency.

Numerous children have died or been abused in recent years while supposedly under DSS care.

The agreement does not end the lawsuit, but signifies that lawyers for the plaintiffs – who include a 16-year-old foster child identified only as Michelle H. – and lawyers for the state have reached a tentative interim arrangement to better protect the lives, safety and health of South Carolina’s thousands of children in foster care.

The agreement was signed by U.S. Judge Richard Gergel of Charleston.

Specifically, the federal “consent immediate interim relief” says the governor and S.C. Department of Social Services have agreed to:

  • Complete a study spelling out how many children each DSS caseworker can manage, and adopt workload limits within 180 days. A considerable number of DSS caseworkers are said to have far more children assigned to them than they can manage.
  • Draw up a plan within 60 days to prevent children age 6 and under from being placed in non-family group homes. DSS will have another 60 days to implement that plan.
  • Phase out the use of hotels, motels and DSS offices as overnight resting places for children in DSS care within 60 days.

In recent months, Alford has made public statements strongly indicating she wants to take steps to improve the quality of the state’s child-welfare system, in which abuses including child deaths and rampant child mistreatment have been increasingly well documented in recent years.

Alford has said she will be asking lawmakers for money to make those improvements, and Haley did, in fact, push for more money in the current fiscal year’s budget to hire more caseworkers. In any event, it is hard to imagine how any substantial changes will be made without more money being spent.

State Sen. Joel Lourie, D-Richland, said late Monday he was heartened by the interim agreement but much work remains to be done.

“This is a systemic problem,” said Lourie, who along with several other lawmakers worked to gather evidence to document DSS’s problems. “We need a good foster parent program, more caseworkers and a lot less turnover among the caseworkers we have.”

Earlier this year, the General Assembly authorized money for DSS to hire some 200 more caseworkers, Lourie said.

In his 18 years in the Legislature, Lourie said, he has never seen a more dysfunctional agency, and the situation was made worse “because DSS is supposed to protect society’s most vulnerable. “

“Many children died in DSS care, and amazingly, kids were dying while people were trying to tell DSS there were problems,” Lourie said. “It is regrettable it took litigation in the federal courts.”

The Gergel filing Monday is the latest action in a January federal class action civil lawsuit filed against Haley and DSS, alleging that a lack of heath care and other basic services is endangering children in South Carolina’s child welfare system.

The legal actions also followed turmoil at the child-welfare agency last year that ended with the director resigning, a scathing state audit and lawmakers conducting hearings about the agency.

Alford, the agency’s new director and a Haley appointee, has pledged to lower the still high caseloads and high turnover rates among child-welfare workers.

The complaint alleged Haley and DSS are responsible for drastic foster home shortages, excessive caseloads for agency workers and a failure to provide children with basic health care. The complaint further alleged that child maltreatment while in foster care goes without investigation, and inaccurate data masks a much higher rate of abuse and neglect than the state reports to the federal government.

Children’s Rights, a national advocacy organization, along with the South Carolina Appleseed Legal Justice Center and S.C. attorney Matthew Richardson filed the complaint in U.S. District Court in Charleston on behalf of 11 plaintiffs, identified as children ages 2-17 who are in the care of the state’s social services system.

Attorneys cited the example of Michelle H., who allegedly has moved through at least 12 placements in eight years throughout the state, including what attorneys allege are abusive foster homes. The complaint alleges that “between the ages of 8 and 11, Michelle was repeatedly physically abused by her foster mother, including being beaten with a belt on her arms, legs, back and buttocks.”

The complaint further says Michelle’s foster mother encouraged another foster child in the home to be physically aggressive toward her, “saying that Michelle ‘needed it.’”

“Despite nearly three decades of repeated notice of dangers to children in DSS custody and multiple opportunities to improve the foster care system, Defendants have continued to ignore those dangers and operate DSS in a manner contrary to law and reasonable professional judgment in deliberate indifference to known harms and imminent risk of known harms to Plaintiff Children, so as to shock the conscience,” according to the lawsuit.

Neither the governor nor Alford could be reached for comment.

Picture of Wyche, P.A.

Wyche, P.A.

Wyche is a full-service law firm that has practiced law and served the community for 100 years. In that time, Wyche has participated in landmark litigation, served as counsel on cutting-edge transactions, and provided community leadership that has helped shape and drive our region’s growth and success. With offices in Greenville, Spartanburg, and Columbia, Wyche is the South Carolina member of Lex Mundi, the world’s leading association of independent law firms.

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