Inept NC child protective system puts vulnerable kids in danger, federal lawsuit says

North Carolina puts thousands of children in harm’s way by failing to fix the state’s broken child welfare system, says a federal class action complaint filed on behalf of nine foster children.

For more than a decade, the state Department of Health and Human Services ignored warnings that its failure to lead and supervise county departments of social services ”places foster children across the state at substantial risk of harm,” says the lawsuit, which was filed Aug. 27.

Gov. Roy Cooper, Secretary of Health and Human Services Kody Kinsley and others, including Mecklenburg County, are listed as defendants. The Cooper administration has already been sued for foster-care failures. A separate lawsuit accuses the state of unnecessarily warehousing foster children in locked psychiatric facilities.

North Carolina has a county-administered social service system, meaning that counties largely control child welfare services. The state provides guidance and is supposed to conduct monthly reviews. It can also put a county under a corrective action plan or do a takeover.

The lawsuit also names Mecklenburg County Department of Social Services, Gaston County and its Department of Social Services as defendants. Those organizations “have failed to provide timely and appropriate treatment, to place children in safe and appropriate foster homes, to thoroughly investigate allegations of maltreatment in care, and to recruit necessary and appropriate foster homes.”

In 2012, there were 6,920 non-relative foster homes in North Carolina and in 2022, there were only 5,183, the lawsuit states. But the number of foster children increased from approximately 8,400 in 2012 to 10,200 in 2022, it says.

As foster care capacity decreases, foster children find themselves “in jails, emergency rooms, DSS offices, homeless shelters, hotels, and other inappropriate and unsafe settings,” the lawsuit says.

Individual cases describe failure

The lawsuit describes the experiences of nine children who were harmed due to issues within the foster care system. One is 8-year-old Jameson from Gaston County, who was placed in foster care in May 2019 after his parents sexually, physically, and emotionally abused him, according to the lawsuit.

Jameson ended up in multiple foster homes across the state through June 2021. Throughout that time, he never received mental health treatment for PTSD and other disorders, which were diagnosed after he left his parents. Instead, he was placed on at least eight different medications, according to the lawsuit.

In 2021, he was placed with foster parent Steven Bolch, who is designated in the lawsuit as Jameson’s “next friend,” or a person who appears in court on behalf of another.

While with Bolch, Jameson was taken off some of his many medications and received specialized therapy. But, he was required to visit his parents.

This came despite Bolch, who at one point wanted to adopt Jameson, notifying DSS that Jameson “engaged in problematic sexualized behavior,” after these visits, according to the lawsuit. Ultimately, Jameson’s sexual behaviors worsened and he was moved from this placement by DSS.

“After four years in state custody, DSS still has not filed to terminate parental rights and Jameson’s permanency plan continues to remain uncertain,” says the lawsuit.

“Jameson’s case was not well managed,” and also due to the lack of adequate action “Jameson has suffered and continues to suffer emotional and psychological harm,” the lawsuit adds.

The lawsuit also includes the story of Megan, 7, and her sister Chloe, 5, from Johnston County. The siblings bounced around placements and were eventually separated due to Megan’s mental and behavioral health issues worsening.

Megan was brought to a residential treatment facility at night but would stay in the Johnston County DSS office during the day.

During one of those stays at the DSS office, sometime in October 2023, staff left Megan unsupervised and a 17-year-old boy sexually assaulted her, according to the lawsuit.

Megan is now in a foster home and remains separated from her sister. DSS has not terminated the parental rights, making it unlikely the girls will reunite or obtain “permanency in the near future,” the lawsuit says.

Three of the other kids named in the lawsuit are from Alleghany County, and three are from Mecklenburg, including Morgan G., a 15-year-old boy who was removed with his siblings from their parents in 2014 due to physical and domestic violence.

After various placements, Morgan landed in the emergency room. He remained there for weeks and ran away multiple times from the hospital, which was not suited to handle his mental health needs, according to the lawsuit.

Many more children affected

The children’s stories are used as the basis for the proposed class action complaint, which seeks action for a class of at least 11,000 children either in the custody of DHHS or who have been involved with it, the lawsuit says.

The lawsuit also lists as a sub-class “thousands of children with disabilities who are or will become a ward of DHHS.”

The lawsuit was filed by attorneys with A Better Childhood Inc., a non-profit legal organization based in New York, and attorneys with Nelson Mullins, a Raleigh law firm.

“We have been looking at the North Carolina system for a number of years, and we have known that there have been problems in the North Carolina system, serious problems,” said Marcia Lowry, executive director of A Better Childhood and an attorney in the case.

“Each time we have backed off because we had some folks that the state would respond, however, the problem continues, and if anything, it is getting worse,” she said, citing high caseloads, high staff vacancies and inappropriate placements for kids, including putting them up in DSS offices and hotels.

The state agency is responsible for looking at whether counties are following federal law but it hasn’t acted, she said.

Cooper spokesman Jordan Monaghan said in an email that “our administration has a strong record of action to protect the people of North Carolina, especially the vulnerable children and families involved in the foster care system. The legislature’s chronic underfunding of social services, health care, and education slows progress on this work even as critical needs grow.”

The legislature has a Republican supermajority, meaning the GOP decides what is prioritized. Cooper is a Democrat.

Asked about the lawsuit, Summer Tonizzo, a DHHS spokesperson, told The N&O that the agency ”cannot” comment on pending litigation.

DHHS has acknowledged failures with child protective services. “Too many children are struggling to access the mental health care and support they need to thrive — stuck in cycles of conflict at school, in emergency rooms without access to necessary care and sleeping in child welfare offices,” Kinsley was quoted saying in a January news release.

In failing foster children in the state, North Carolina officials — and all defendants in the suit — violated several protections guaranteed in the U.S. Constitution, the lawsuit states. They also violated the Child Welfare Act of 1980, an act which sought to improve child welfare, social services and more, it argues.

The Americans with Disabilities Act and Rehabilitation Act, U.S. laws prohibiting discrimination against people with disabilities, were also violated, the lawsuit charges.

At the heart of the complaint

The lawsuit hinges on whether the defendants, responsible for the care of foster children, provided an adequate level of care, including by maintaining a proper case management system and appropriate supervision of county social services departments.

“Instead of establishing meaningful performance requirements and taking corrective actions, DHHS has adopted a custom and practice of assuming direct control over child welfare services only after the substantial risk of harm has escalated to actual irreparable harm.” says the lawsuit.

Under state rules for agencies, caseworkers can’t serve more than 15 children, and those serving children in therapeutic foster homes can’t serve more than 12 children.

However, “the counties regularly ignore and fail to maintain these standards. And DHHS does not take steps to determine whether these standards are complied with,” says the lawsuit, noting that high caseloads permit “children to fall through the cracks” and lead to high staff turnover.

The lawsuit also accuses DHHS of failing to develop and implement a comprehensive electronic record and case management system.

After a failed attempt at rolling out case management software, the state continues to largely rely on paper records and legacy computer systems, according to the lawsuit. The failure to address data issues places “federal funding in jeopardy,” plaintiffs state.

“It is amazing that the state does not have an organized computer system that is reporting on what’s happening to these children. You can’t fix a problem if you don’t, if you can’t identify what’s actually going on. And certainly that is something that’s happening in North Carolina,” Lowry said.

North Carolina “has particular problems because it is a county-run system and that, I think, probably encourages more disorganization,” she added.

The shortage of foster homes has also led to “a dramatic increase in placements instability,” where kids bounce around placements and “has encouraged a disturbing practice by many County DSS of abandoning foster children in hospital emergency rooms with little agency contact and no educational or mental health services,” the lawsuit says.

North Carolina has also seen an increase in the practice of relying on group homes for placement and kids often languish in foster care, according to the lawsuit.

The lawsuit also says that county DSS offices “routinely retaliate” against foster parents for “voicing opinions or opposing DSS recommendations” by removing or threatening to remove the foster children from their care.

Among other things, the lawsuit calls on the court to require DHHS to establish and enforce mandatory performance metrics for county DSS Child Welfare Services and for DHHS and counties to enforce caseload standards.

It also calls on all defendants to recruit and retain enough qualified and appropriately trained workers and to place children in placements that are safe, appropriate and in the “least restrictive” environment,” suited to needs.

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