Acting Atty. Gen. Peter Nickles

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