A putative class action on behalf of children in the Indiana foster care system has mostly survived the state's bid for a quick win thanks to a team of Kirkland & Ellis LLP attorneys and two nonprofit partners, though the government is still hoping to short-circuit the litigation.
The children in the suit, who are also represented by A Better Childhood and Indiana Disability Rights, have alleged that the state of Indiana has failed to provide safe and appropriate foster care placements for the children in its care, including by placing many children with disabilities in institutions instead of community-based environments.
Children are often separated from their siblings and can spend lengthy stays in emergency shelter care, according to the complaint.
The suit also alleges that internal problems at the Department of Child Services contribute to the problems, including high caseloads for case managers and trouble retaining personnel, leading to high turnover.
"We view [this case] as impactful for thousands of kids in the Indiana foster care system," said Aaron Marks, a litigation partner with Kirkland & Ellis.
DCS said in a statement after the suit was first filed that the timing of the case was "puzzling," and argued that it had been making improvements. It told Law360 in an email, "DCS has continued to make significant progress that results in better outcomes for Hoosier children and families, even during these unprecedented times. The agency continues to see a downward trend in the number of children in foster care and residential placements as we focus on providing the right care to the right child at the right time."
Nikki Gray, an attorney with Indiana Disability Rights, told Law360 that ultimately the team representing the children would hope to work with the state in addressing some of the issues identified in the lawsuit.
So far, however, she said, DCS has not seemed open to that and has in fact been fairly aggressive in its response to the suit.
The case survived a motion to dismiss in May, but since then, the state has taken the unusual step of filing a second motion to dismiss, saying that the first victory revealed additional flaws in the case.
In ruling on the first motion, the Indiana federal court agreed to nix a claim brought under the Adoption Assistance and Child Welfare Act, but said that most of the claims in the case should stand.
The decision rejected the argument that the case would interfere with a state court proceeding — in this case, the children's "children in need of services" or CHINS proceedings — and ruled that the court did have jurisdiction over the proposed class action.
"Plaintiffs are not challenging the state-court custody orders themselves; they are challenging defendants' actions and policies that led to those orders," the court said.
Following the decision, however, the state of Indiana filed a new motion to dismiss, arguing that if the suit did not intend to rectify errors in the CHINS proceedings, the claims lacked the necessary standing to proceed.
"Each plaintiff complains in this federal court about circumstances that his or her CHINS court regularly reviews, has ordered, [or] may modify," the motion argued. "Then, each plaintiff requests in this federal court assorted injunctions and declarations that — plaintiffs admit — would not (indeed could not) change such circumstances."
Marks declined to comment on the merits of the new motion, but said that he did not consider it to be procedurally proper for the state to try for "a second bite of the apple."
Gray said it was "disappointing" to see the state push back so forcefully against an attempt to reform its foster care system. She noted that early in the case, the state also motioned for the adults acting as "next friend" of the children in the suit to be removed.
"We have very young plaintiffs; we have plaintiffs who have been in the system for many years; one of our plaintiffs has significant developmental disabilities and limited verbal skills and has been living in a nursing home," she said. "For DCS to then say that these children don't require this extra level of representation to protect their interests, it was a little disheartening."
Despite the challenges, Gray said she was glad that the suit was happening. For years, she said, Indiana Disability Rights had been advocating for individuals in the system, but it had never had the resources to push for systemic change, even though the organization believed that the foster care system required it.
Having the backing of A Better Childhood, which is a national organization, and of Kirkland & Ellis, she said, has made a big difference.
"It's night and day for us," she said.
Marks told Law360 that the case was a good example of the Kirkland & Ellis approach to pro bono, saying that the firm likes to pursue cases with the potential to make a broad impact.
And for Marks, the case also speaks to him personally.
"This is my first foray into litigation involving the foster care system, but I also have three kids of my own," he said. "Certainly a driving factor for me in choosing the areas in which I do pro bono work is to help other children have opportunities, to have [better] day-to-day lives."