On August 4, 1999, a group of children in the legal and/or physical custody of the New Jersey Division of Youth and Family Services (DYFS) filed this lawsuit against the State of New Jersey and DYFS in the U.S. District Court for the District of New Jersey. Represented in part by Children's Rights, Inc., the plaintiffs alleged that DYFS failed to protect them from abuse, failed to provide them with services such as medical care, and failed to provide DYFS caseworkers with adequate resources and training. The plaintiffs claimed these actions violated federal common law and federal statutes. They named, in particular, the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 620-27, 670-679; Multiethnic Placement Act of 1994, as amended by the Interethnic Adoption Provisions of 1996; Child Abuse Prevention and Treatment Act; Early and Periodic Screening, Diagnostic and Treatment Program, 42 U.S.C. § 1396 et seq; the Americans with Disabilities Act, 42 U.S.C. § 12131; and the Rehabilitation Act of 1974, 29 U.S.C. § 794. Additionally, the plaintiffs claimed that New Jersey and DYFS’s actions violated the Due Process clause of the Fourteenth Amendment and the rights to association, privacy and family integrity under the First and Ninth Amendments. With the complaint, the plaintiffs also moved for class certification.

On October 12, 1999, the defendants moved to dismiss the case for failure to state a claim. On January 27, 2000, U.S. District Judge Garrett E. Brown granted the motion with respect to the plaintiffs’ substantive due process cause of action. The court dismissed the substantive due process claim to the extent it was alleged on behalf of children who were voluntarily in state custody. The court held there was no substantive due process right to “not remain in state custody unnecessarily” or “to be housed in the least restrictive, most appropriate and family-like placement while in state custody.” The court also dismissed the plaintiffs’ cause of action under the Multiethnic Placement Act of 1994 because the plaintiffs failed to allege that they were denied the opportunity to become an adoptive or foster parent on the basis of race, color, or national origin.. The court denied the motion for all the other asserted causes of action, and noted that "[t]here [was] no term other than tragic to summarize the facts" alleged in this case. Charlie H. v. Whitman, 83 F. Supp. 2d 476 (D.N.J. 2000).

After some procedural wrangling, in October 2000, the plaintiffs submitted an amended complaint as well as a modified motion to certify class action. By March 2001, the plaintiffs moved for a preliminary injunction to prevent the defendants from conducting an audit of DYFS case records. The court then ordered the defendants to show cause why a preliminary injunction should not be entered. On June 28, 2001, the court again denied the plaintiffs' motion to certify class action, concluding that the plaintiffs’ class definition was overly broad. On July 30, 2001, the plaintiffs again filed a third motion for class certification, which the court granted on March 7, 2002. During this time, on September 28, 2001, the court denied the plaintiff's motion for preliminary injunction after determining that the plaintiffs failed to show irreparable harm and that injunctive relief was warranted. The parties proceeded towards trial and commenced discovery.

Meanwhile, on January 27, 2003, the New York Times and other newspapers moved to intervene in the case in order to modify the confidentiality orders. The court granted the motions in part for purposes of reporting to the public about the state of the child welfare system. Charlie H. v. Whitman, 213 F.R.D. 240 (D.N.J. 2003). The New York Times published a series of articles focused on the New Jersey child welfare system, including several pieces about the death of Faheem Williams, a seven-year-old boy whose case had been closed by DYFS even though there were outstanding issues of abuse.

Once discovery concluded, on February 27, 2003, the court entered an order referring the parties to mediation and appointed former New Jersey Supreme Court Justice Stewart G. Pollack. Through mediation, the parties reached a settlement agreement in July 2003. After a fairness hearing, the court approved the settlement agreement on September 2, 2003. Under the core principles that the foster care placements be as temporary an arrangement as possible, with its goal being to provide to children in out-of-home environment safe permanent placements, the settlement agreement mandated the creation of an expert panel (the New Jersey Child Welfare Panel) which was tasked to begin the planning process for improvements in the child welfare system and overall supervision and technical assistance during the 18 month period. The agreement also set out planning procedures, definition of improved outcomes for children, and review process. Areas of immediate mandates included securing funds ($14.3 million) to hire additional man power, conducting safety assessments, reviewing high-risk facilities individually, reviewing standards for licensing, reviewing hiring processes, among others. The agreement also mandated the appointment of a monitor.

On February 26, 2004, the plaintiffs moved to appoint a guardian ad litem on behalf of three class members, currently in DYFS custody, to protect their interests in any claims for damages they may have against DYFS. On April 5, 2004, after oral argument on this motion, the court denied the plaintiffs’ motion to appoint a guardian ad litem. The plaintiffs then moved for $150,000 in attorneys’ fees and expenses on September 27, 2004. The court granted that motion on November 5, 2004.

In October 2005, the court-appointed monitor found that the state was making "seriously inadequate progress" in implementing the terms of the settlement agreement. During this time, the Communication Workers of America, AFL-CIO (CWA) were granted leave to appear as amicus curiae.

After unsuccessful negotiations between the parties to improve progress levels, in December 2005, the plaintiffs moved to hold the defendants in contempt for noncompliance with the consent decree. However, the newly elected governor created a new cabinet-level children's agency and began new negotiations with the plaintiffs. As a result, the parties modified the settlement agreement in July 2006.

The modified settlement agreement provided for phased implementation. In Phase 1, lasting from July 2006 to December 2008, the state committed to working in collaboration with the Monitor to develop a case practice model that addresses issues of regular case planning, development of individualized service plans, and training for caseworkers. Among the increased services for youth are mental health services, services for lesbian, gay, bisexual, transgender and questioning youth, and regular medical examinations.

Phase II, from January 2009 until termination of the agreement, required completion of certain outcomes based on numerous indicators—e.g., that all children are safe from abuse and that siblings are placed together. The settlement provided for bi-annual reports by a monitor and established a dispute resolution process. Until November 2015, the monitor filed reports in accordance with the modified agreement.

On November 4, 2015, the second modified settlement agreement was entered. The 2015 agreement identified as areas to be achieved: timely and quality completion of investigations on alleged child abuse and neglect, timely execution of initial and subsequent family team meetings, proper needs assessment, timely and quality planning of cases, proper management of intake/adoption workers' caseloads, proper parent-child/siblings visitations, stable placements (with siblings, where possible), prevention of repeat maltreatment and re-entry to placement, timely discharge to permanent placement, provision of services to support transition and independent living assessment of older youth. The agreement stipulated that once defendants demonstrated compliance during a period longer than 12 months, the court would terminate its jurisdiction over the case. The first monitor’s report for the new agreement was filed in June 2016.

Enforcement of the settlement agreement is ongoing.

Elizabeth Homan - 12/16/2012
Soojin Cha - 07/03/2016


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