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January|February 2004
The Trials of John Edwards By David Greenberg
Deep Impact By Daphne Eviatar
What's Your Happiness Worth? By Brendan I. Koerner
Elsewhere

Deep Impact

Lawyers bent on reforming child welfare agencies learn to love their inner bureaucrat.

By Daphne Eviatar

SEVEN-YEAR-OLD FAHEEM WILLIAMS was found dead last January, wrapped in a sleeping bag and locked with his half-starved brothers in a relative's basement in Newark, N.J. He quickly came to stand for everything that was wrong with the state's troubled child welfare system, much as 6-year-old Elisa Izquierdo symbolized New York's failure to protect its abused and neglected children nine years ago, when her angelic face made the cover of Time after her mother beat her to death. In both cases, the children were killed while they were supposed to be under the watchful eye of the state. Child welfare workers staggering under the weight of enormous caseloads—32 children on average in New Jersey, nearly twice the national standard of 17—had closed cases like Faheem's. And years earlier, they hadn't gotten around to checking on children like Elisa.

The deaths of Faheem and Elisa share another distinction: They helped create momentum for reform. Yet lawsuits were already underway against both New York and New Jersey over the breakdown of their child welfare agencies. Led by the litigator Marcia Robinson Lowry, a team of lawyers had sued New York City as well as the state in 1995 on behalf of 100,000 abused and neglected children. Lowry's lead plaintiff was Marisol A. (a pseudonym), a 5-year-old who'd been beaten, locked in a closet for months, and starved so badly that she ate a cardboard shoebox and her own feces. Lowry charged that the city had often failed to take away children from dangerous parents and had dumped many of those it did remove in more dangerous foster homes and institutions. In 1999, she filed a similar suit in New Jersey.

Sweeping lawsuits like the ones brought by Lowry have long been a favorite tool for shaking up torpid child welfare bureaucracies. At least 32 class actions have been filed against agencies around the country, alleging violations of the Constitution, civil rights laws, and child protection statutes. Called "impact litigation" because they aspire to radical, system-wide change, the suits draw attention to a dire problem that lacks a constituency battling to fix it. Who votes on behalf of abused and neglected children? Some scholars have argued that the lawsuits force legislatures to put up money to solve problems that politicians usually ignore.

Child welfare administrators, however, often complain that lawyers and court orders emphasize improving how an agency looks on paper over providing real services to children. New York City officials still insist that Marisol hindered rather than helped their reform efforts. Even more telling is the skepticism of Martin Guggenheim, a professor of clinical law at New York University widely respected for his work on behalf of poor families. "The Marcia Lowry outfit," Guggenheim said, "is always doing the same thing. It's attacking the commissioner of child welfare in any given community for doing an inadequate job in foster care. I've often felt that their work is destructive rather than constructive."

If Guggenheim's critique sounds personal, in some measure it is. Since Lowry began filing lawsuits at the New York Civil Liberties Union and then at Children's Rights, her own nonprofit organization, she has become a flashpoint in the debate over child welfare litigation. At the same time, conservative critics have begun calling the impact suits antidemocratic.

In a new book, Democracy by Decree: What Happens When Courts Run Government, Professors Ross Sandler and David Schoenbrod of New York Law School argue that the suits shift control from government officials to unelected lawyers and judges. (The University of Chicago's Laurence Lynn and Texas A&M's Anthony Bertelli made a similar argument two years ago in the Fordham Urban Law Journal.) Child welfare agencies in Washington, D.C., Connecticut, and Kansas City, Mo., for example, have been operating under court orders for more than a decade. The critics want to disarm the child-advocate lawyers and the appointed experts who "wield the power of office without running for office."

The lawyers, of course, haven't laid down their weapons. But they are beginning to shift tactics. Sometimes, they now say, the smart way to litigate isn't to charge headfirst at a city agency. Instead, it's more productive to work with the beleaguered officials who run it—even if trusting the enemy conflicts with the lawyers' own instincts.

TO THE CRITICS, WILDER v. BERNSTEIN is the classic example of failed court-driven reform. Filed to end religious and racial discrimination against foster care children in New York City, the 1973 lawsuit made—and later broke—Lowry's reputation. At the time, foster care was mostly provided by private Catholic and Jewish agencies, which gave preference to children of their own kind. Lowry's lead plaintiff, Shirley Wilder, was a 13-year-old African-American Protestant who had been passed from one abusive institution to the next because Catholic and Jewish agencies refused to accept her into their better facilities. After 15 years of litigation, Lowry reached a settlement with New York City that opened up equal access to services for all children.

By that time, however, religious discrimination by foster care agencies was no longer at issue. To stay in business, the Catholic and Jewish agencies had begun taking black Protestant children, who had become the overwhelming majority of those in need. Still, Lowry used the Wilder settlement to keep a hand in the running of child welfare in New York for the next decade. "The child welfare system was lousy, so I decided to use the decree beyond the narrow purposes we brought the lawsuit for," she said recently. "The defendants always complained that this wasn't what the lawsuit was about. But we milked it for as much as we could."

That's what litigators do: use whatever leverage they have on behalf of their clients. But Sandler and Schoenbrod argue that Wilder created an unwieldy bureaucracy that stymied opportunities for real reform. In The Lost Children of Wilder, a book on which Sandler and Schoenbrod rely, New York Times reporter Nina Bernstein contrasts the lawsuit with the deterioration of Shirley Wilder, whose son followed her into foster care before the case ended. While Bernstein's book offers narrative rather than analysis, it leaves the reader with the overwhelming sense that Lowry's lawsuit—and all class-action litigation to improve child welfare services—is futile.

But Wilder isn't really typical these days. With government officials unlikely to accept lawyers' dictates or agree to settlements that could keep them in court for decades, advocates now devise agreements that try to push agencies in the right direction while giving them the flexibility to design their own plans. Still, the outcome of these suits often depends to a large extent on the personalities and tactics of the plaintiff's lawyers and the defendants—a particularly troubled mix in Marisol.

ELISA IZQUIERDO WAS ONE OF 27 CHILDREN in the New York child welfare system who died at the hands of a caretaker in 1995. For some reason, it was her story that riveted public attention. Perhaps that was because the abuse she suffered contrasted sharply with the reports of her beauty and charm—qualities which had even attracted the notice of Prince Michael of Greece, who saw her by chance on a visit to her Brooklyn Montessori school. The prince ended up paying Elisa's tuition, and he joined in the mourning over her death.

After weeks of damaging news stories about the city child welfare agency's mishandling of multiple reports of abuse prior to her death, then-Mayor Rudolph Giuliani pledged radical changes. He pulled the child welfare agency out of a larger bureaucracy, renamed it the Administration of Children's Services, and hired an accomplished new commissioner, Nicholas Scoppetta. A former foster child himself, as Giuliani and the New York press loved to point out, Scoppetta had also been a prominent prosecutor, an assistant to two New York mayors, and president of the board of the esteemed Children's Aid Society. In early 1996, he was hailed as the man who could save New York's most vulnerable children.

But Scoppetta's arrival at the ACS didn't persuade Lowry to withdraw her lawsuit on behalf of Marisol and the other 100,000 children in the plaintiff class. She and her staff had spent more than six months documenting hundreds of stories like Elisa's. "The city has run out of chances," Lowry told the newspapers when she filed Marisol in the midst of Giuliani's housecleaning.

Now 62, Lowry is a stately woman who wears stylish pantsuits and heels and has carefully coiffed gray hair. Raised by a traditional Jewish family in Miami, she moved to Queens at 21. She worked as a journalist before enrolling at New York University Law School in the late 1960s. A civil rights lawyer in the 1960s, Lowry grew frustrated and at one point decided to try policy making. She got a job with the city's foster care agency but soon quit in frustration. "There are hundreds of people in city bureaucracies who just don't work," she said when we met recently in the spare offices of Children's Rights, which opened eight years ago.

Lowry doesn't keep those sorts of criticisms to herself. When Lowry sues a government agency, she tells the local papers all about the lousy job the officials there are doing. I worked for Lowry as a staff attorney at Children's Rights from 1997 to 1999, and I remember living in fear of her judgment. But if her style can be off-putting, Lowry has won admiration for her tenacity. "Marcia has a legal strategy that works for her," said Paul Vincent, former director of the Alabama child welfare system.

Nicholas Scoppetta, however, isn't even a grudging fan of Lowry's. When he became ACS commissioner, Scoppetta wasn't to blame for the agency's problems. That didn't make him any more amenable to being sued, though. He and Giuliani wanted free rein to reshape the agency.

Scoppetta still resents Lowry's refusal to give it to them. "That's such bullshit," he said when I told him that even Lowry's critics recognize Marisol for creating the conditions that led to effective reform. "The agency is a different place now than it was before—no thanks to the litigation."

Scoppetta insists that the improvements at ACS—a $520 million budget increase, a new computer system to track cases, hundreds of better-trained and better-paid caseworkers—are the result of his and the mayor's commitment alone. "Once reform starts going, then litigation is a hindrance," he said. Marisol had a "terrible chilling effect." Supervisors couldn't detail problems in memos or ask for expert reports because such documents could have been used against the agency at trial.

Scoppetta is right that the lawsuit required the city to turn over thousands of pages of internal memos and e-mails. As a junior attorney on the case, I recall all too vividly the many hours spent combing through those documents for damning evidence. What was the point of putting us through the search, we often wondered, since the city had conceded the agency wasn't doing a good job?

As Scoppetta now admits, however, Giuliani "was dead-set against settling class actions." No matter how well we documented ACS's past failures and the resulting harm to kids, there would be no court order to enforce improvements without a trial. Early settlement negotiations broke down over what the agency would allow to be enforced. "She said, 'It must be punishable by contempt if you don't follow whatever we agree on,'" Scoppetta said of Lowry's position. "And we were not going to do that."

Scoppetta is also venomous about the $9.1 million legal bill that Lowry submitted to the city. Ultimately negotiated down to about $5.8 million, the money reimbursed the costs and attorneys' fees of Children's Rights, Lawyers for Children (a nonprofit group that served as co-counsel), and two private law firms that had taken the case pro bono. In every federal civil rights case, plaintiffs' lawyers are entitled to attorneys' fees if they win a court order or settlement agreement. A nonprofit shop like Lowry's can't survive without that money.

But Scoppetta thinks Lowry bilked the city by amassing an army of lawyers against him. "She hired—I don't know how many, but certainly 18 to 20 lawyers," he said. "They do discovery from here to kingdom come, they run up a bill, many millions and millions of dollars." Scoppetta claimed that Lowry might have been paying the lawyers $250 an hour but billing the city $350.

As a member of Lowry's team, I know she never hired temporary lawyers and didn't pay anyone in her office anywhere near $250 an hour; $25 or $30 was more like it. We each earned far less than we would have made almost anywhere else. Scoppetta even accuses the pro bono lawyers from two large New York firms—Schulte Roth & Zabel and Cahill Gordon & Reindel—of taking the case for the attorneys' fees. "We certainly did not do this for attorneys' fees," says Ira Dembrow, a lawyer at Cahill who worked on Marisol. "We donated all of our fees to children's rights." (Schulte, Roth gave away about a third of its fees.) Scoppetta's claims are baseless but telling: they reveal how personally attacked he felt.

Vincent's recollections of being a defendant in a similarly sweeping class action against the Alabama Division of Children and Family Services couldn't be more different than Scoppetta's. "It was the most satisfying role I've had," Vincent said. Hired shortly before the lawsuit began, he didn't feel defensive. On the contrary, he too thought the system in Alabama was awful. As he recalls, the state's lawyers postured for a while, but eventually followed the lead of their clients, who wanted to use the suit as a vehicle for improvement.

The plaintiffs' strategy in Alabama also differed from the one followed in Marisol. Lawyers for the Bazelon Center for Mental Health Law, which brought the case, say that they started by talking with the other side about the problems that needed to be solved, a conversation that ultimately lasted for more than two years.

"I began my career with a typical litigator's view that everyone's incompetent and needs to be cleared out," said Ira Burnim, the center's legal director. By the time he got involved in Alabama, Burnim had changed course. "I tried to get people to the point where everyone agreed the only answer was a lawsuit," he said.

The Alabama settlement, reached in 1991, didn't stipulate numbers of caseworkers to be hired, visits children were to receive, or reports that were to be filed, common measures of an agency's performance. Instead, it committed the state to a set of principles designed to improve each caseworker's judgment about when a family can keep a child safe and what help it might need. Eventually, every caseworker was retrained. "What got measured was practice and outcomes," said Vincent, "not filling out forms."

Martin Guggenheim of NYU sets aside his usual skepticism of class actions to praise this one. "The Bazelon Center transformed the Alabama system," he said. Lowry, for her part, is more skeptical. She credits the successful outcome to Vincent's commitment, not to the settlement agreement. "In Alabama, they were very fortunate to have a very good defendant," she said. "But the settlement was basically just a statement of principles."

Yet after fostering much rancor, Marisol too, ended in compromise. On the eve of trial in 1998, the case was settled at the initiative of the pro bono lawyers from Cahill and Schulte, Roth, who were on far better terms with Scoppetta and Giuliani than Lowry was. The agreement required the city to give an independent panel of experts full access to ACS's operations and records.

Chosen by both sides and funded by the Annie E. Casey Foundation, the panel had the authority to recommend changes. The city was free to ignore these recommendations, but if the panel found after two years that the city had not made a "good faith" effort at reform, Lowry could take ACS back to court. If the panel found good faith on the city's part, on the other hand, it could pack up and go home, and ACS would be free to continue or disband the reform project as it saw fit.

It was hard for Lowry to swallow a built-in end to the process with no specific commitments for the city. Good faith efforts aren't what litigators fight for: They want court orders that mandate concrete results.

But Lowry had little choice. Giuliani had refused long-term court oversight. The presiding judge, Robert Ward, had been overseeing Wilder for 25 years. That case ended as part of the Marisol settlement. Ward was understandably reluctant to embark on another judicially supervised epic. Perhaps with that in mind, he'd made clear at countless hearings that he trusted Scoppetta to handle the city's reform effort.

Looking back, Lowry says that settling was "the right decision." Sandler and Schoenbrod, the critics of class action, also praise the Marisol settlement for ending the case "without any judicially imposed mandates"—in other words, for leaving city officials alone as long as they were making a good faith effort.

The settlement has lately won praise even from some child welfare advocates who initially thought it was weak. The agreement "brought the Casey Foundation and a panel of experts to New York City, which was probably the best thing that's happened in the history of child welfare litigation in New York," said Monica Drinane, attorney-in-charge of the Legal Aid Society's Juvenile Rights Division, which initially objected in court to a part of the settlement that precluded new class actions for a time. "Although the system is by no means perfect, it definitely has moved dramatically in the right direction," said Drinane.

Some of the praise is borne out by the evidence. New York's jointly chosen expert panel completed its work in 2000. By that point, the number of children in foster care had decreased by 18 percent over two years, and the number of newly admitted children had decreased nearly 24 percent. More families accused of abuse or neglect were being referred by ACS workers to preventive programs like counseling and drug treatment. And more kids were getting foster placements in their own neighborhoods, increasing the chances that they would stay in the same school and continue to see their families. At the same time, the panel found that the reforms hadn't helped reunify children with their families more quickly and that changes like better contracts between the city and private foster care agencies had yet to translate into improved casework.

Sandler and Schoenbrod like the Marisol decree because it set an end date. By holding the lawyers and the experts to a time limit, the settlement "reversed the usual practice" of requiring defendants to prove that they've complied with a court's directive. But from an advocate's perspective, that's also the settlement's greatest weakness. With the case closed, there's no guarantee that the city will continue the reforms that it has begun. Scoppetta, the man Giuliani and then Judge Ward had relied on, left ACS at the end of the mayor's term in 2001. Mayor Michael Bloomberg is now facing the city's biggest budget crisis in decades. As Scoppetta acknowledges, it takes a long time to change a government bureaucracy. "Mayors think in terms of four years," he said. "But it's a marathon, not a sprint."

Lowry is still in the race, but in a more conciliatory way. Along with other child welfare lawyers, she is studying how ACS can reduce children's length of stay in foster care and how the agency can improve its care of teenagers. The advocates have agreed to present their findings to the city before filing any lawsuits. It's a fundamental shift for Lowry. "I think litigation is truly a last resort," Lowry told me when we spoke, something I don't ever recall hearing when I worked for her.

A LAST RESORT, but sometimes still a useful one. Lowry sued New Jersey in 1999 over the appalling state of its foster care system. Governor James McGreevey fought the case vigorously, hiring a private law firm to defend against the claims, even though a blue-ribbon task force had found many of the same sorts of glaring problems at the child welfare agency. Then the abuse suffered by Faheem Williams and his brothers was uncovered. Battered by the press and the public, McGreevey was forced to concede that the agency couldn't solve its problems on its own. Like Giuliani in New York City, he restructured the child welfare agency and hired a new commissioner with top credentials. He also told his lawyers to start talking settlement.

In September, the federal judge overseeing the case approved an agreement between New Jersey and Children's Rights. As in Marisol, the settlement created an independent advisory panel of experts. But this one has no set end date and far more authority.

The panel will begin by helping the state develop a detailed plan with specific commitments to improve every aspect of child welfare. The goal is to decrease the children's length of stay in foster care, the number of times they change homes, and the incidence of abuse in state custody. The settlement requires an immediate infusion of only $24 million from the state, which neither side thinks will be enough to fund the reform plan. Still, the panel has the power to approve or reject the plan and then to decide if state officials are adequately carrying it out. If not, Lowry gets to take the state right back to federal court.

She may need to. At the end of October, four adopted boys whose family had been visited regularly by a New Jersey caseworker turned out to be starving. The child welfare agency had flunked its first big test since the settlement. And the boys' plight became the latest symbol of the government's continuing failure to protect children.

Daphne Eviatar, a writer and lawyer in Brooklyn, last wrote for Legal Affairs about law school clinics.

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