Mississippi’s government said health and safety problems in the foster care system are not being intentionally ignored as the state’s attorneys continue their efforts to dismiss federal oversight over its child welfare system.
In a Tuesday court filing, lawyers from Mississippi’s Attorney General’s Office and the private law firm Baker Donelson said the issues that a court-appointed monitor identified in a recent report do not violate the U.S. Constitution.
The monitoring is federally required by the 22-year-old Olivia Y. v. Barbour lawsuit — in which lawyers representing Mississippi foster children have repeatedly said the state’s child welfare efforts are systematically dangerous.
In 2018, lawyers representing both the state and foster children in Mississippi agreed to an independent monitoring program that would annually examine over 100 safety measures. The agreement says the state government can dismiss the monitoring after it has met all the safety measures for at least a year.
In the latest report, published in July, the independent monitor found the Mississippi Department of Child Protection Services had only met 22 of the applicable 107 measures, ranging from maltreatment in state care to placing children in unlicensed homes.
Mississippi’s lawyers questioned how the monitor went about creating the report in their Tuesday filing. They said Gov. Tate Reeves and department Commissioner Andrea Sanders have not deliberately caused these safety problems.
The lawyers argue that Mississippi’s child welfare department has worked with the state Legislature to solve these problems and that should be enough to show the state is meeting its constitutional responsibility.
“They have identified risks, marshaled resources, enacted legislation, rebuilt staffing, modernized technology, and restructured MDCPS to protect children’s personal security and reasonably safe living conditions,” the state’s attorneys wrote in their filing.
Marcia Lowry, the lead lawyer representing Mississippi foster children, said Wednesday that the 2018 agreement was a legal contract, one that Mississippi’s government had not yet met the standards required to end. She said lawyers for the state knew they would be measured by the agreement rather than the Constitution when they signed onto it.
“That’s how the case is supposed to end,” Lowry said. “It’s not supposed to end by the state now saying ‘We’ve done a bunch of different things, and we think that satisfies the constitutional standard.’”
Lawyers for the department also said the required safety measures were “aspirational” metrics and they couldn’t be used to show Mississippi’s government wasn’t trying to address foster children’s safety.
The 2018 agreement says the monitoring is intended to “maintain the child welfare infrastructure, standards, and outcomes that Defendants must meet within specified timeframes statewide.” Lowry said all the lawyers knew that these safety standards were enforceable when they signed the contract and the “aspirational” goals were not optional.
“We entered into this because this is what we thought they could and should agree to get to, what they should get to over a period of time,” she said. “This is what the state agreed to.”
Clint Pentecost, the Baker Donelson lawyer who submitted the late Tuesday filing, did not answer a phone call or return a voicemail from Mississippi Today by publication time. MaryAsa Lee, spokesperson for Mississippi Attorney General Lynn Fitch, did not respond to an email.
Zoey Tether, a former Mississippi foster child, sits outside her home in Pontotoc, Miss. Credit: Anna Hu / Mississippi TodayThe Olivia Y. lawsuit has lingered in the legal system for decades while Mississippi children continue to enter and exit the state’s child welfare system. Zoe Tether spent some of her teenage years in Mississippi’s foster care system, cycling through at least 10 foster care placements until the state found her a permanent home. She said at one of those placements, the adults responsible for her gave her so much medication that she could barely stay awake.
Now 21 years old and living in Pontotoc County, she’s gotten to know other Missisisppi former foster children. She said they all have plenty of stories like hers, where they feared for their well-being as the state said it would keep them safe.
“Where are these reasonably safe places?” Tether asked when told about the state’s filing. “One out of 10 is not reasonable.”
She said whether intentional or not, the consequences of unsafe living conditions are carried by people like her — kids who often have no choice over where they end up. For a state agency charged with those responsibilities, Tether said it’s hard for her to even think about allowing any margin of error.
“What you miss is children and their lives,” she said.
Chief U.S. District Judge Sul Ozerden will decide what happens next in the lawsuit. Lawyers for the state asked Ozerden to either end federal foster care oversight or hold a hearing for the case, one where each side could present more evidence. Lowry said she and the other lawyers would be prepared for a hearing if Ozerden opts for one.
Anna Hu contributed reporting to this story from Pontotoc.
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