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Both sides claim victory in Utah foster-care case

SHARE Both sides claim victory in Utah foster-care case

Both sides claimed victory Monday after a federal judge ordered an independent monitoring panel to write a comprehensive plan to bring the state into compliance with a 1994 child foster-care settlement, while at the same time refusing to place state foster-care programs in receivership as an advocacy group had demanded.

While state officials tried to put a positive spin on U.S. District Court Chief Judge David K. Winder's ruling, attorneys for the National Center for Youth Law characterized his decision as an unparalleled defeat for the Division of Child and Family Services and its chief, Mary Noonan."It's like you have the CEO of a corporation and all her authority to plan management decisions and implement changes in the company have been taken away from her," said Bill Grim with the youth law center. "She will be a tool of the monitoring panel."

Rod Bettit, director of the state Department of Health and Human Services, which oversees the division, disagreed with Grim's assessment. He described the ruling as creating an environment in which the monitoring panel and the division can finally begin to work together.

"I think it's a well-balanced decision and Judge Winder has given it a lot of thought," he said. "It's certainly not a statement that everything is corrected at this point but recognizes that some progress has been made and doesn't require a heavy hand from the court."

The center filed a class action lawsuit in 1993, saying Utah's child foster-care program was in disarray and did not meet the needs of its clients. Even after the case was "settled" in 1994, both sides have continued to fight over the compliance issue. Since the settlement, the state has spent almost $190 million to come into compliance with Winder's orders.

Despite that influx of new funds, the center asked Winder during a Jan. 31 hearing to put Utah's foster-care program into receivership. Center attorneys contended the state has not taken adequate steps to comply with the 1994 court settlement and charged that state officials are actively engaged in a conspiracy to thwart the court's instructions to improve the division.

The independent monitoring panel overseeing the settlement found the division out of compliance with the agreement three times within the past 18 months. The panel's most recent report was particularly harsh, asserting that conditions affecting the welfare of children are actually worse in some areas than they were a year ago.

In what can only be seen as a direct slap in the face, Winder sided in his ruling with the monitoring panel's findings of non-compliance and held open the possibility of further measures if the state does not correct problems in the division. Panel member Pamela Atkinson said Winder has asked the panel to do a new monitoring report covering the period from October 1996 to March 1997.

That report, which should be completed in three to four months, will be used as a baseline for compliance issues to be addressed in the comprehensive report. Atkinson said the report will be finished long before the period covered by the 1994 settlement expires in August 1998.

Winder's order directs the state to provide the monitoring panel with the necessary resources to complete the comprehensive report. The monitoring panel and the center have alleged in the past that the division has stonewalled attempts to properly fund monitoring activities. Betit said he didn't think there would be problems with that issue now.

State officials have refused to provide the panel with all of the funding it sought in the past because they said they disagreed with the methodology the panel used.

"I think the panel preparing a new report on more current data in which they define those standards they are going to use - which they have not to date - is a good idea," said Betit. "We need to clearly define what it is that they are trying to hold us up to in terms of performance standards and then, based on that, sit down and negotiate what needs to be done."

Betit found it significant that Winder's decision noted the good work being done by division case workers, that he recognized that progress has been made and that he noted the issue of child foster care is complex.

Grim disagreed with Betit's optimistic vision of the ruling, saying the decision shows an obvious vote of no-confidence in division leadership.

"I'm not surprised that they put the same old gloss on it," said Grim, reacting to Betit's remarks.

Grim said Winder directs the division to reinstate the center as a partner in the grievance process for plaintiffs in individual cases. In 1995, the state Legislature unilaterally eliminated the grievance process including the center.

"What this ruling means is, the agency will be compelled to go down a different road and the children of Utah will be safer in more stable placements," said Grim. "There is very little for the defendants to take solace in in this opinion."