Gov. Tate Reeves and Child Protection Services Commissioner Andrea Sanders on Monday asked a federal judge to dismiss a decades-long lawsuit against the state over its historically neglectful foster care system.
If the state is successful in its effort to finally rid itself of the litigation, it would be an end to the Olivia Y. v. Barbour lawsuit that has spanned three governors and multiple CPS commissioners and cost the state hundreds of thousands of dollars in legal fees.
The state’s motion was accompanied by a 35-page affidavit from Sanders, who said CPS has improved services for children through a series of new state laws, increased state funding, more agency staffing and technology upgrades.
Alex Gibert, the agency’s communications director, declined to comment on the latest motion, saying the agency does not comment on pending litigation.
In its motion to dismiss, Mississippi said the most recent update to the settlement agreement from 2018 is outdated. In 2021, plaintiff and defendant lawyers agreed that the state didn’t have the capacity to meet the agreement’s requirements, and U.S. District Judge Sul Ozerden paused parts of the requirements to give Mississippi about two years to do so.
That rebuilding period lasted two years longer than originally expected, until 2025. During that time, foster kids in the state’s custody continued to experience abuse and neglect at high rates, according to independent reports from a court-ordered monitor.
Marcia Lowry, executive director of the legal nonprofit A Better Childhood and the lawsuit’s lead plaintiff lawyer, told Mississippi Today it was a big surprise that MDCPS filed Monday’s motion. She said she and lawyers for the state have a meeting scheduled in the coming weeks to discuss the settlement agreement, but none of the defendant lawyers had brought up this action.
“We had no warning about it,” Lowry said.
She said she and the plaintiff’s lawyers worked throughout the four-year rebuilding period to negotiate a new settlement agreement, but attorneys for Mississippi didn’t cooperate with them.
“It looks like this is going to be serious litigation,” she said.
The lawsuit’s 2024 independent court monitoring report found that Mississippi had improved its caseload per CPS worker. But abuse rates for children in the state’s custody continued to be high, and CPS employees often misreported these cases.
Lowrey said she expects the neutral monitor to publish its 2025 report soon, and that will inform what the plaintiff lawyers do next.
“Increasing the workload is an important thing to do,” she said. “They seem to have done that, good for them. But there are many, many other provisions in the settlement.”
The plaintiffs have not yet responded to the state’s motion, but Lowry said they would in the next few weeks. Afterward, Ozerden will decide whether to conduct a hearing or bench trial on the matter.
The litigation started in 2004 when six children in foster care sued the state of Mississippi for failing to provide for children in state custody adequately. Olivia Y., a 3-year-old whose identity was protected, was so severely neglected by her foster family that by the time the state intervened, she weighed only 22 pounds.
In 2008, U.S. District Judge Tom Lee approved a plan that tried to address many of the plaintiffs’ concerns. He ordered Mississippi’s Department of Human Services, then the state agency responsible for foster care, to make major reforms to the child welfare system.
Since then, the state has entered into two agreements with the plaintiffs and has designated foster care responsibilities to its own agency, CPS. But monitoring reports indicate that Mississippi has frequently not met either of the settlements’ terms.
Brice Wiggins, a Republican from Pascagoula who leads the Senate Judiciary A Committee, told Mississippi Today that he is not surprised by the motion, and he would be glad if the judge dismissed the lawsuit because the Legislature has worked to improve the state’s foster care system.
“We’ll see what happens, but it sounds like CPS is being proactive by filing this in court,” Wiggins said.
Wiggins has worked for years to improve the state’s youth court system and the foster care system. Even if the judge grants the state’s request, Wiggins stressed that the Legislature needs to continue improving the youth court.
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