In a 46-page ruling, U.S. District Court Judge Thomas F. Hogan held today that D.C.'s Child and Family Services Agency (CFSA) is not yet ready to come out from under its court oversight. This represents a significant setback for Attorney General Peter Nickles, who has pressed to end the court-appointed monitoring of the troubled agency.

Hogan had taken months to come to his decision. In July 2008, in the aftermath of the Banita Jacks tragedy, Children's Rights filed its contempt motion. Soon, Hogan ordered CFSA to come up with a plan to fix itself. The District had a difficult time actually completing this task. Instead, Nickles drafted a plan without the court monitor's approval. Bad idea.

Meanwhile, Nickles and Fenty selected Dr. Roque Gerald to run the agency. They did so without consulting Children's Rights–another bad idea, and a violation of a court order. Hogan did not like this move, and Nickles ended up having to play defense.

Imagine all that Hogan had to sift through before issuing today's ruling. But wait, there's more!

As the debate continued through 2009, even a CFSA official suggested court oversight was a good thing, and University Legal Services published another scathing report on the agency. The court monitor issued a report critical of CFSA's foster care. And teens testified before the D.C. Council on the difficulties of aging out of the system.

What's at stake here? A review of recent Child Fatality Review Board reports suggests that a lot of kids die under the city's watch. Within the past year, two newborns died at D.C. General's family shelter.

In his ruling, Hogan held Mayor Adrian Fenty in contempt for not consulting with plaintiffs or court monitor in hiring Gerald.

Hogan also held the city in contempt for failing to come up a plan approved by the court monitor. He ruled that the District showed a "blatant disregard" in failing to work with the court monitor. He writes: "Intransigence may be a nominal improvement from indifference, but it is still unacceptable in this context."

Hogan dismissed the District's motion to end federal court oversight. In a number of key areas—conducting timely investigations, adoptions, and training of CFSA employees—the judge expressed skepticism that CFSA had improved enough to show compliance with court-approved benchmarks. He writes: "Unfortunately, in light of the District's refusal to abide by the simplest provisions of the Stipulated Order, the Court cannot find that a period of good faith has persisted. Nor has the District achieved, let alone established a period of consistent compliance."

While Hogan agreed that the District has made progress in improving CFSA, it has not done so in a complete, real and sustained way. "Undoubtedly, CFSA has taken measures to buttress reforms," Hogan writes. "But the defendants have not illustrated any, at least not in a manner that inspires enough confidence to support a conclusion that the agency's progress is 'durable and self-sustaining.'"

In his conclusion, Hogan writes:

"Extensive litigation on these motions has changed little. Although the District's child welfare system has improved drastically from the dismal state it was once in, the defendants have yet to deliver a fully satisfactory child welfare system....Supervision must persist until the defendants demonstrate that the District reliably satisfies its responsibilities."

The result: All the parties must formulate a plan for CFSA.

"It's very much the right ruling," Children's Rights Executive Director Marcia Lowry tells City Desk.  "I'm hoping this is finally going to ensure the case moves forward to accomplish the purposes of the agreement which the District has really stalled on."

Lowry still sees the courts as the appropriate venue for monitoring the troubled child-welfare agency.

"It's a fight over doing what's necessary," Lowry says. "The problem was there had been an agreement a long time ago about what should be accomplished for a child. The District about a year ago decided it didn't want to do that anymore so it didn't make a plan....That seemed to be a real disregard for what children need."

The case is now more than 20 years old.

"I have a lot of patience," Lowry says. "I represent a group of children in the District and I am going to represent them as vigoriously as I can....I find it a real waste of resources. This is a small system. It could have been fixed a long time ago."

File photo by Darrow Montgomery

The plaintiff's, Children's Rights, a New York-based advocacy law firm which specializes in exposing troubled child welfare agencies and turning them around, was in its element. The District's lawyers were no match for Children's Rights founder and executive director Marcia Lowry. While both sides disputed whether or not the agency met those benchmarks—with the city attorney lamely complaining that some of the benchmarks were too difficult to meet—Hogan seemed most annoyed with point No. 4 of his stipulated order. It stated that the city must consult with the assigned court monitor as well as Lowry's group during the selection of a new CFSA director.

Lowry had contended that Children's Rights was not consulted. Hogan stated from the bench that the city had "blatantly" failed to comply with this aspect of his court order.

This evening, Loose Lips (aka Mike DeBonis) reached AG Peter Nickles and asked him to comment on Hogan's statements. Let's just say Nickles argument was less than legalistic. His response was all about feelings.

Nickles: "I know that I personally consulted with both [Court Monitor] Judith Meltzer and plaintiff's counsel on the very same day. I asked, is this sufficient consultation?" Nickles says that Meltzer thought it was enough to meet the court order. Lowry disagreed.She said she was notified of Dr. Roque Gerald's selection the day before the official announcement was made.

"She said she was opposed, that [this] wasn't sufficient consultation," Nickles recalls. "There's no way of consulting in advance with the plaintiffs, because they don't agree with anything we're doing."

Hmm. Shouldn't you consult in advance with the plaintiffs because a federal judge ordered you to? How hard would it have been to notify Lowry a week prior to Gerald's appointment?

This morning in U.S. District Court, Judge Thomas F. Hogan took up the on-going legal battle over the District's Child and Family Services Agency. At issue was whether or not the agency could be held in contempt. Hogan devoted much of his consternation on the how the District went about picking Dr. Roque Gerald (pictured) to head up CFSA.

At the time of Dr. Gerald's selection, City Desk questioned whether the District violated Hogan's order. We wrote:

"Last fall, U.S. District Court Judge Thomas F. Hogan issued an order stipulating a series of directives. One of those stipulations involved the future selection of a permanent director at CFSA. On Tuesday, Fenty announced his selection of interim director Roque Gerald to take over in a permanent capacity. Hogan had stipulated that “the Court Monitor and Plaintiffs will be included in the selection process for the permanent Director.'...

The Plaintiffs–Children’s Rights–say they were never consulted during the selection process. “We were not included in the process and I think given the problems the agency has had over the last several years the choice of the director was critically important,” says Children’s Rights Executive Director Marcia Robinson Lowry. She adds that this violated the court order."

While Gerald has gotten high praise from child advocates and has definitively saved the agency from the fallout over the Jacks case, Hogan suggested today that the city had indeed violated his order. Hogan dubbed the city's following of his order a "blatant" failure. Maybe he too doesn't like Fenty's secretive m.o.

The bulk of the nearly two hour proceedings over the contempt motion did not center on Gerald's selection. Instead, Children's Rights and the city's attorneys debated whether or not CFSA had made significant progress in helping kids in care. No kids testified. It was all lawyers debating the whether or not the agency had cleared various benchmarks.

Children's Rights' Lowry showed charts proving that the agency had failed to meet the majority of those benchmarks which covered everything from staff training to placing kids in foster homes. She told the court that the agency had "not yet reached a level where they are protecting children."

Lowry provided a staggering timeline of accepted benchmarks and the agency's slow and often negligent response dating back several years. She stated that CFSA had only met 15 out of the 68 benchmarks. This was just a mere snapshot of the agency's problems which were detailed in a recent court monitor's report.

Lowry's testimony touched on the court monitor's findings that fewer and fewer kids are leaving the system through adoption. The monitor also reported that a huge number of children and youth are living in unlicensed foster homes or facilities.

"As of January 31, 2009, there were 1575 children in foster home placements. Of the 1574 children, 74 (5 percent) children were placed in foster homes that exceeded their licensed capacity. Additionally, there were 178 children placed in group homes as of January 31, 2009. Of the 178 children, 39 (22%) children were placed in group homes that exceeded their licensed capacity of 8 children...."

The monitor also reported that of the 1007 foster homes where children were placed, 10 percent of those homes did not have current and valid licenses. Prior to the hearing, Children's Rights had flagged other aspects of the monitor's report—chief among them was the agency's alleged overuse of group homes and residential treatment facilities as housing options for children in care as well as how quick the agency investigated neglect/abuse allegations.

Again, this was a short hearing. City Attorney Ellen Efros kept her points short. She emphasized that the agency had made progress but that the benchmarks were too old and too tough to actually meet. She argued that the standards are lower in other cities—in other words, why can't we just lower our standards? Efros, though, could not cite any other jurisdiction's standards.

At one point early on in Efros' testimony, Hogan interrupted her and sounded an exasperated note: "We've been at this since 1989."

Hogan was referring to the agency's rollercoaster history—the inception of the class-action case, subsequent receivership and bumpy road since the city agency shedded court oversight in 2003. Hogan did not at all seemed pleased with Efros' attempts to jettison benchmarks that didn't fit her theory of a fit agency and denounce other benchmarks as too harsh.

"It seems...oversight by the judiciary is important," Hogan later stated.

Still, Hogan declined to rule on the contempt motion. He says he is keeping it under consideration. The next hearing is set for July 20.

As he left the courtroom, Gerald had no comment.

Prior to the hearing, Lowry talked about the problems with the city warehousing kids. "The placement process in the District is extremely hit or miss," she said. "There is not a real effort to develop the kinds of resources that the kids need and certainly there’s a very slipshod process about where the kids should go. There’s no question, there are too few appropriate foster homes and too few foster homes all together."

Lowry says the city needs to invest in a real plan. "I don't think there's anything approaching long-term planning," she explains. "One thing that's so alarming about the course that they are now on—they don't have any long term plans for the agency and certainly their aspirations for the agency are very insufficient."

The IG's office provides a timeline of events. Here's what caught my eye:

• May 1, 2007: A CFSA "Investigations Worker" and a D.C. cop visit the Jacks house. No one answers the door. But old junk mail is observed—the same junk mail from a previous visit—in front of the door. Also still at the door: a letter previously left by the CFSA worker.
• May 2, 2007: The CFSA worker goes to the house. Again, no one answers the door.
• May 16, 2007: Investigations Worker erroneously believes that the family has relocated to Charles County, Maryland. This came from another government worker. "Therefore recommends to his supervisor that the investigation be closed," the report states. "CFSA closes the case, and the Investigations Worker then sends a fax to Charles County Child Protective Services..."

By Aug. 25, D.C. Water and Sewer Authority disconnects service to the Jacks house; Washington Gas disconnects service as well. On Sept. 5, Pepco disconnects service.

On Jan. 9, U.S. Marshals begin eviction at the house, where they discover the bodies of Jacks' children.

The IG's office rips the CFSA worker:

The CFSA Investigations Worker told the team that had he been given more time, he might have been able to make contact with the family. The CFSA Investigations Worker recommended to his supervisor close the case 20 days after receipt of the hotline call to CFSA even though he had 30 days to complete the investigation.

Also looks like the D.C. police failed big time as well:

On April 30 between 11:54-11:57 a.m., an officer arrived at the Jacks house and tells the "dispatcher that he is available for assignment because 'there's an adult on the scene.' After being reminded by the dispatcher that the mother has withdrawn the children from school and has 'mental problems,' and that he is there to check on their welfare, Officer #1 says, 'The kids seem fine to me, ma'am.'

But there's a catch: The officer never sees the kids. According to the report, a police memo dated Jan. 13, 2008, states that when the officers arrived on the scene, the person that answered the door–presumably Banita Jacks–refused to allow them to check on the children.

Last fall, U.S. District Court Judge Thomas F. Hogan issued an order stipulating a series of directives. One of those stipulations involved the future selection of a permanent director at CFSA. On Tuesday, Fenty announced his selection of interim director Roque Gerald to take over in a permanent capacity. Hogan had stipulated that "the Court Monitor and Plaintiffs will be included in the selection process for the permanent Director."

It is that order that is now being seriously questioned. When appointing top posts, Fenty isn't known as a big outreach guy. His appointment of Chief Cathy Lanier is exhibit A. Now his selection of Gerald is coming under scrutiny.

The Plaintiffs–Children's Rights–say they were never consulted during the selection process. "We were not included in the process and I think given the problems the agency has had over the last several years the choice of the director was critically important," says Children's Rights Executive Director Marcia Robinson Lowry. She adds that this violated the court order.

This point may be brought up in the next round at U.S. District Court, Lowry says. "We have an open contempt motion that is going to be briefed to the court...This is another violation," Lowry adds.

Attorney General Peter Nickles has a different take.

Nickles says Fenty and Co. did an exhaustive search for the CFSA director slot. "I'm not going to get into numbers," he says. "We both interviewed and called people...Dr. Gerald put his name in the hat and he was interviewed."

Yesterday, we reported that Councilmember Tommy Wells, who chairs the Committee on Human Services which covers CFSA, was left out of the loop. Charles Allen, Wells' chief of staff, was not aware of anyone being interviewed for the position.

Lowry says Nickles only notified her on Monday that Gerald had been selected. Nickles says there was a reason why Children's Rights wasn't consulted during the vetting process.

"It didn't seem at least to us to have them interview people who weren't going to be seriously considered," Nickles says. "It's tough to get people to come in if they think they are going to be answerable to the mayor but also to the court monitors and advocates."

Normal 0 false false false MicrosoftInternetExplorer4 Nickles goes on to sharpen his point. "We have a terrible problem in getting people interested in being considered because of the buzz saw they see themselves getting into," Nickles explains i.e. heading an agency with a court monitor. "As far as I know the plaintiffs haven't liked any of our directors."

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I asked Nickles if there was any reason to have liked the previous directors? He stated that the previous directors at least tried to make the agency better. And that, well, they now have a great director in Gerald.

Lowry is skeptical with the Gerald selection. "Leadership is absolutely critical," she says. "The previous director was from inside the agency. The person they just appointed was from inside the agency."

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