Arburta Jones August 22, 2012

Management Review of the  Commonwealth of 

Massachusetts Department of  Children and Families Safety  Net for Children in Its Care  

When hope and good intentions are not  enough 

DCF is not meeting its obligations to assure the safety of children in its

custody who were removed from their families of origin due to child abuse and neglect. 

2012 

Arburta Jones  August 22, 2012 

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EXECUTIVE SUMMARY

Child welfare professionals understand that safety in foster care is the product of vigilance in maintaining a regular and supportive presence in the lives of the vulnerable children served by the child welfare system and in the foster homes in which they are placed. This presence largely comes in the form of consistent caseworker visits to children in their foster homes and the timely licensing and reassessment of foster parents. A well-managed child welfare agency demonstrates vigilance by making timely and effective responses to allegations of abuse and neglect in care and by employing sound contract monitoring and quality assurance programs.

DCF currently provides neither the consistent presence nor the vigilant oversight necessary to keep children in its care safe. Every day, approximately 7,500 children, through no choice of their own, depend on DCF to assure their safety and well-being. These vulnerable children are entitled to no less than focused and dedicated leadership that is committed to excellence in providing steady care and protection. Rather than demonstrating this commitment, DCF leadership has been offering excuses for lapses in safety practice that are both unacceptable and avoidable. As a result, children are being harmed. DCF has for several years ranked among the lowest performing child welfare systems in the nation in terms of keeping children in foster care safe. In Child Maltreatment 2010, the most recently published federal data compilation, Massachusetts ranked 8

worst in the country on this fundamental measure. Even accounting for variation among the states in terms of child protective services investigative standards, Massachusetts falls well within the bottom tier of performance in assuring safety in foster care.

This assessment has found - based upon a thorough review of DCF’s very own performance data, business records, policies and internal communications - that the agency’s safety net is woefully deficient. These deficiencies appear in fundamental aspects of child welfare administration and practice and constitute a failure by DCF to conform to applicable law and regulation, agency policy and recognized standards among child welfare professionals.

Specifically, this assessment has found profound shortcomings in the following fundamentals:

1. Inadequate Visitation of Children in their Foster Homes: Consistent contact by

social workers with the children under their supervision and care is an essential

component of the foster care system’s safety net. Only through face-to-face

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communication with these children in their placements can social workers adequately monitor basic safety and timely identify risk factors requiring response. Yet, DCF management reports consistently show unacceptably low visitation rates, including hundreds of children who are not visited for periods of two and even three consecutive months. These reports also show highly variable practice across the 29 Area Offices through which DCF delivers services.

2. Untimely Licensure and Reassessment of Foster Homes: Though licensed foster parents, with few exceptions, intend to provide a nurturing home environment for the children placed within their care, these same parents remain subject to the stressors and pressures that are known to contribute to child abuse and neglect. It is imperative that DCF undertake rigorous background checks on all foster parent applicants and that regular safety updates be conducted to identify any newly emergent risks before they become manifest in the form of child maltreatment. Yet, DCF management reports consistently show that required initial home studies and annual licensing reassessments and renewals are untimely more than 20% of the time.

3. Inadequate Protective Services Capacity and Ill-Defined Policy: DCF has charged its Central Office Special Investigations Unit (“SIU”) with the responsibility of investigating allegations of institutional maltreatment, which include incidents of suspected abuse or neglect occurring in foster homes and congregate care facilities.

The SIU, however, is understaffed and routinely fails to complete institutional maltreatment investigations within the timeframe established in state law. This lack of adequate staffing also prevents SIU from engaging in quality assurance reviews to identify common systemic failings that contribute to safety lapses within the system.

Moreover, DCF’s current protective services policies contain contradictions and flaws that risk confusion and uncertainty in the handling of institutional abuse complaints.

4. Inadequate Contract Monitoring: Even though DCF contracts with private child

placing agencies and residential care providers to deliver placements and services to

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approximately 40% of all children served in Massachusetts foster care, the department has not developed a contract monitoring capacity large enough to oversee its statewide network of contractors. As troubling, DCF has not established a set of performance measures and benchmarks for assessing the quality of contracted services, nor does it conduct regular on-site performance audits to assure that providers are employing safe and appropriate practices. Children placed by DCF with private providers remain the responsibility of the state, yet DCF is far too often essentially delegating or abdicating this responsibility.

5. Ineffective Quality Assurance: No large organization can assure consistently sound performance outcomes without developing systems to measure performance and to make improvements where needed. This is especially true of child welfare agencies which are complex, multi-faceted operations that deliver services over wide geographic areas. Yet, DCF employs a single central office quality assurance manager without adequate staff supports. As a consequence, quality assurance within DCF currently amounts to the circulation of periodic data reports without the staff, training and resources needed to put the reports to practical and effective use.

None of the above deficiencies is subtle. Each has been known to responsible state officials for years. Nevertheless, these deficiencies remain uncorrected, and already traumatized children are paying the price for this failure of will in the form of further abuse and neglect. That is unconscionable. Until DCF management attends to the urgent business of repairing the agency’s torn safety net, it should refrain from the tired excuses it has offered up about data variability across the states when confronted with the federal Child Maltreatment data. DCF has very real safety vulnerabilities that demand immediate attention.

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INTRODUCTION

Attorneys for the plaintiffs in the federal litigation Connor B. v. Patrick retained me to conduct an assessment of the capacity of the Commonwealth of Massachusetts Department of Children and Families (“DCF”) to assure the safety of the children in its foster care custody. In performing this assessment, I have examined DCF’s management structures, systems, and processes, intended to protect children in state foster care, sometimes referred to as a “safety net.” Though the mission of a child welfare agency involves the protection of children both in foster care and in the community at large, I have focused my assessment of DCF on the adequacy of the agency’s safety net insofar as it applies to children in out-of-home care. I bring more than 25 years of experience as a social worker and senior executive manager in child protective services in state government. During my tenure with the New Jersey Department of Children and Families I had direct management responsibility for that system’s safety net, acting as director of the Division of Central Operations from 2006 through 2008. In that position, I

oversaw the agency’s statewide child abuse hotline, specialized investigations unit for allegations of institutional child abuse and neglect, and risk management functions and additionally had significant involvement in the agency’s licensing functions. My state government experience is further augmented by direct care and senior executive experience in nongovernmental, not-for- profit organizations. Based on my education and experience, I am well qualified to conduct this assessment and opine accordingly. I have appended my resume which provides the details of my extensive career.

REVIEW METHODOLOGY

The assessment of DCF that follows is based on my review of thousands of pages of documents and testimony including:

1) DCF Case Practice Policy & Procedures Manuals 2) Applicable Massachusetts law and regulations 3) Applicable federal law and regulations

4) Applicable standards of practice published by professional organizations in the

child welfare field, including Child Welfare League of America Standards of

Excellence and Council on Accreditation Standards

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5) Transcripts and all accompanying exhibits for the following depositions:

a. Fact Deposition of Mary Gambon, DCF’s Assistant Commissioner for Adoption, Foster Care & Adolescent Services, May 14, 2012

b. Fact Deposition of Jan Nisenbaum, DCF’s Deputy Commissioner for Policy, Planning & Programs, May 18, 2012

c. Fact Deposition of Marilyn Chase, Assistant Secretary for Children, Youth and Families in the Executive Office of Health and Human Services, May 21, 2012

d. Fact Deposition of Olga Roche, DCF’s Deputy Commissioner for Field Operations, May 23, 2012

e. Fact Deposition of Angelo McClain, Commissioner of DCF, May 25, 2012 f. Fact Deposition of Joy Cochran, DCF’s Director of Foster Care Support

Services, April 13, 2012

g. Fact Deposition of Frances E. Carbone, DCF’s Director of Program Operations, April 19, 2012

h. Fact Deposition of Ruben Ferreira, Assistant Commissioner for Continuous Quality Improvement, February 2, 2012

i. Fact Deposition of Rosalind Walter, DCF’s Director of the Data Management/Quality Assurance Unit, January 4, 2012

j. Fact Deposition of Raymond Burke, DCF’s Area Director for Pioneer Valley, January 19, 2012

k. Fact Deposition of Joseph Collins, DCF’s Area Director for Franklin and Hampshire, January 25, 2012

l. Fact Deposition of Beryl Domingo, DCF’s Director of Field Support Programs, January 25, 2012

m. Fact Deposition of Terrence Flynn, Regional Director for the Southern Region, January 26, 2012

n. Fact Deposition of Robert Scherer, DCF’s Director of Procurement, January 27, 2012

o. Fact Deposition of Patricia Mackin, DCF’s Chief of Staff, March 1, 2012

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p. Fact Deposition of Paul Fitzsimons, DCF’s Regional Director for the Western Region, March 5, 2012

q. Fact Deposition of Raymond Pillidge, DCF’s Regional Director for the Northern Region, March 7, 2012

r. Fact Deposition of Virginia Peel, DCF’s General Counsel, February 8, 2012 s. Rule 30(b)(6) Deposition of Scott Scholefield re: Abuse or Neglect in Foster

Care, November 16, 2011

t. Rule 30(b)(6) Deposition of Jan Nisenbaum re: the Program Improvement Plan, April 4, 2012

u. Rule 30(b)(6) Deposition of Jan Nisenbaum re: Staffing, Caseloads, and Training, Jan. 13, 2012

v. Rule 30(b)(6) Deposition Testimony of Ruben Ferreira re: Electronic Data Collection and Reporting, August 23, 2011

w. Rule 30(b)(6) Deposition of Robert Wentworth re: Purchased Services Licensing, Delivery, and Oversight, December 29, 2011

x. Rule 30(b)(6) Deposition of Paul Fitzsimons re: Visitation and Permanency Planning, September 28, 2011

6) Plaintiffs’ Amended Responses to Nos. 2 and 16 of Defendant’s First Set of Interrogatories, served on July 20, 2012, and all documents cited therein

7) Regular and ad-hoc DCF management reports

8) Additional business records, data reports and internal communications of DCF 9) Data reports generated by the United States Department of Health and Human

Services, Administration for Children and Families, including but not limited to Child and Family Services Data Profiles and Child Maltreatment annual publications

10) Information gleaned from the official websites of the DCF

(http://www.mass.gov/eohhs/gov/departments/dcf/), Massachusetts Office of the

Child Advocate (http://www.mass.gov/childadvocate/) and the Child Welfare

League of America (http://www.cwla.org).

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I did not have access to DCF management for purposes of interviews.

The opinions that I have formed are based on an application of accepted standards of care in the child welfare field to the facts contained in the above documents and testimony. As set forth below, I have found that DCF deviates from these standards in a variety of respects.

DCF well recognizes that the primary obligation of a child welfare system is to protect children from abuse and neglect. In testimony offered by Commissioner Angelo McClain at the Joint Hearing of the House and Senate Committees on Ways and Means (February 27, 2012), he stated the following:

The Department of Children and Families is charged with protecting children from abuse and neglect and strengthening families. With the understanding that

to ensure the safety of children in a manner that holds the best hope of nurturing a sustained, resilient network of relationships to support the child’s growth and development into adulthood.

Further, the DCF (formerly Department of Social Services) introductory statement to its manual of policies and procedures states the following:

The Department of Social Services was created by the legislature in July of 1978 to provide services to families and children living in Massachusetts. We opened our doors on July 1, 1980. Our mission at DSS is to support and strengthen families, keeping families together whenever possible. We provide a full range of family support services, including counseling, day care, and parent aides. We are also the agency mandated to receive and respond to reports of child abuse and neglect. When families cannot or do not provide the necessary care and protection for their own children, we intervene to ensure children’s safety and right to sound health and development. This dual obligation - to protect children and to strengthen families, respecting their right to be free from unwarranted state intervention - presents an inherently difficult balance to strike. The efforts to balance these two obligations govern all the Department’s activities.

If a child welfare agency, such as DCF, is to meet its primary safety obligation, it must develop and maintain certain essential capabilities. The hinge pins of a strong foster care safety net are (1) consistent foster home visitation; (2) timely and rigorous licensure and reassessment;

(3) timely and effective responses to allegations of maltreatment by foster caregivers; and (4)

1 Executive Office of Health and Human Services, Fiscal Year 2013 Budget Hearing before the Joint Committee on Ways and Means, February 27, 2012, EOHHS001194398-404, at 398 (emphasis added).

2 Department of Social Services, Case Practice Policy and Procedures Manual,, DCF POL 1-1064, at11

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fully developed internal and external systems of accountability. Based on my review, I have determined that the DCF safety net falls short in each of these four core elements of a sound foster care system.

Overall Conclusion: DCF is not meeting its essential obligation to assure the safety of children in its custody who were removed from their families of origin due to child abuse and neglect.

CHILD WELFARE SERVICES

“...the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life, the sick, the needy and the handicapped.”

Last Speech of Hubert H. Humphrey November 1977 Washington, D.C.

The Commonwealth of Massachusetts was one of the first states to respond to the need to protect children from harm. “In 1866, Massachusetts passed a law authorizing judges to

intervene in the family when ‘by reason of orphanage or of the neglect, crime, drunkenness or other vice of parents,’ a child was ‘growing up without education or salutary control, and in circumstances exposing said child to an idle and dissolute life.’”

While child protection was birthed in nongovernmental agencies, by the 1930’s there was increasing impetus to move the responsibility and authority to the government, and by 1967, in most states the responsibility for child protection was firmly placed legislatively under government authority.

The field of child protection slowly moved from the use of orphanages to a system of foster care to provide safety for abused and neglected children. While foster care is not without its problems, it has remained the primary option for children in need of immediate protection from harm. Challenges of foster care systems include, but are not limited to, the tendency of poorly managed systems to allow children to suffer additional maltreatment in foster care settings and to languish in care for long periods without being returned to safe and stable families. The Adoption Assistance and Child

3 John E.B. Meyers, “A Short History of Child Protection in America,” Family Law Quarterly 42, no. 3 (Fall 2008), 450.

4 Id. at 452-54.

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Welfare Act of 1980 (AACWA) and Adoption and Safe Families Act of 1997 (ASFA) were passed, in part, to respond to these pressing concerns.

The foremost goal of any child welfare agency is to assure the safety of the children in the communities comprising its jurisdiction through the provision of child abuse prevention and protective services. The obligation of the agency to assure safety is elevated when government intervenes in family life, removes children from their families of origin, and places them in the foster care system.

The United States Congress established that the health and safety of children

“shall be the paramount concern” of any child welfare agency with the passage of the Adoption and Safe Families Act (Public Law 105-89) in 1997.

The Commonwealth of Massachusetts has designated the Department of Children and Families (“DCF”) in the Executive Office of Health and Human Services (“EOHHS”) as the agency responsible for meeting this obligation.

Child welfare work is at once very complex and extremely difficult because the quality of a child’s life hangs in the balance of every decision and family dynamics are ever shifting.

While seeking to provide the least intrusive intervention into family life, child welfare professionals are continually assessing the risks of family preservation versus the emotional trauma that accompanies removal of the child from the family home. In those instances where children must be removed from the care of their parents, the state, having decided to place itself

custody. While even a well-managed child welfare system cannot attain infallibility, particularly as related to accidental or unpredictable harm, the state must exercise all due diligence to prevent abuse or neglect to children in its care. The exercise of due diligence to prevent harm to children in foster care is a multifaceted process consisting of (1) regular quality contact with the children in their foster care placements, (2) rigorous licensure, (3) timely response and thorough

investigation of allegations of abuse or neglect and critical incidents, and (4) internal and external systems of accountability, including contract monitoring and quality assurance mechanisms.

5 Id. at 459-60; Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272; Adoption and Safe Families Act of 1997, Public Law 105-89.

6 For the purposes of this report, unless otherwise specified, the foster care system is inclusive of all types of out-of- home living arrangement in which the child has been placed, voluntarily or involuntarily, by the governmental authority, specifically the Massachusetts Department of Children and Families.

7 Adoption and Safe Families Act of 1997, Public Law 105-89, 105^th Congress, Title I § 101.

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Due to the dynamic nature of family life and the human propensity to err in judgment, the agency must have a consistent set of policies and procedures to which staff adhere in order to guide daily practice and decision-making and to which they will ultimately be held to account. It is critical that staff at every level of the organization is intimately familiar with policy/regulation that governs their particular area of influence and responsibility. In addition, general familiarity with agency policy beyond the focal point of one’s personal practice is required to place one’s work into the context of the broader organization so that one can be responsive to the letter, as well as the intent, of the organization’s practice infrastructure.

State child welfare agencies must be attentive to every detail in the procurement and maintenance of alternate living arrangements for the children in its care. Prospective foster care providers must be background-checked to ensure that they have the capacity to care for and protect the particular children being placed – particularities associated with the unique needs and strengths of the children being placed. There is a common tendency to presume that children are safe after they have been removed from an unsafe home environment and placed into foster care, and the focus of intervention then typically shifts to permanency planning. (In fact this tendency is sufficiently prevalent that the National Association of Social Workers (“NASW”) practice standards for child welfare professionals provide a cautionary note to social workers not to assume that a child is safe because the child is in out-of-home care.)

Social workers must continually assess and assure safety for the children in care. Yet, assuring the safety of the placement is too large a responsibility to rest solely on the shoulders of the social worker for the child. The state must provide support for foster caregivers to ameliorate the stress oftentimes accompanying the supervision and care of traumatized children and youth, while at the same time holding these caregivers accountable to provide quality and safe shelter and care. Social workers, foster care resource workers, licensing inspectors, and contract monitoring staff each have a role to play in assuring safety and accountability. When problems with a caregiver’s ability to meet the needs of individual children arise, and they will arise, social workers must recognize these challenges and respond quickly to assure safety for the child. Again, noting that every threat cannot be foreseen or prevented, failure to recognize and respond to red flags inevitably threatens the safety of foster children.

8 See NASW Standards for Social Work Practice in Child Welfare, Standard 14, available at http://www.naswdc.org/practice/standards/NASWChildWelfareStandards0905.pdf.

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CHILD WELFARE STANDARDS

“Now is the accepted time, not tomorrow, not some more convenient season. It is today that our best work can be done and not some future day or future year. It is today that we fit

ourselves for the greater usefulness of tomorrow. Today is the seed time, now are the hours of work, and tomorrow comes the harvest and the playtime.”

W.E.B. Du Bois Three African-American Classics: Up from Slavery, The Souls of Black Folk, and Narrative of the Life of Frederick Douglass

Like other responsible professionals, child welfare professionals should pursue excellence in serving their clients, in this instance, some of our nations’ most dependent and vulnerable citizens. Child welfare professionals must always strive to meet professional standards of care, even those that have been labeled as “optimal” or “excellent.” Those of us who have children want nothing but the best for them – we do not seek to provide for them that which is mediocre. When the child welfare system steps in to act in loco parentis, those same expectations must guide the agency’s daily work on behalf of children and families. Even as child welfare agencies pursue standards of excellence, there are fundamental laws, regulations, and minimum standards reflected in agency policy that they must meet in providing safe haven for children in their custody.

There are three sets of standards widely used to evaluate the performance of child welfare programs. First, the Child Welfare League of America (“CWLA”) has published “Standards of Excellence.” CWLA standards “present practices considered to be most desirable in providing the child welfare services the community offers through its various agencies, regardless of auspices or setting.”

CWLA represents that its standards “make it possible to compare what exists with what is considered most desirable for children and their families, and to judge the extent to which performance approximates or deviates from desirable practice.”

Second, the Council on Accreditation (“COA”) accredits both public and privately

administered child welfare agencies and publishes related standards of practice. In the preface to its published standards, CWLA describes the COA standards of accreditation as “rigorous but realistic descriptions of practice standards that a competent provider agency should be able to

9 CWLA Standards of Excellence for Services for Family Foster Care Services, rev. ed. 1995, xvii.

10 Id. at xvii-xviii.

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meet.”

CWLA was one of two founding members of COA.

COA itself provides that “[a]

standard is a practice goal for a field or industry that is widely recognized or employed as a model of excellence. . . . The standards represent a set of practices that support, collectively, strong organizational performance, and positive service delivery outcomes.”

In each practice area, the COA has compiled a “Table of Evidence” summarizing the standards.

At the bottom of each table is a list of “Fundamental Practice Standards” (“FPS”) that are “fundamental to quality practice” and which the COA expects organizations to “implement . . . immediately.”

There are three types of FPS: “Essential Life and Safety Standards,” “Health and Welfare Standards,” and “Clients Rights Standards.”

COA includes within the Essential Life and Safety Standards caseworker-child visitation and home studies, an aspect of licensing.

Third, the federal Administration for Children and Families, Children’s Bureau has established performance benchmarks applied in conducting Child and Family Services Reviews (“CFSR”). The purpose of the CFSR process is “to enable the Children’s Bureau to: (1) ensure conformity with Federal child welfare requirements; (2) determine what is actually happening to children and families as they are engaged in child welfare services; and (3) assist States to enhance their capacity to help children and families achieve positive outcomes.”

The federal government has established six statewide indicators that are applied in the CFSR process to assess whether a state agency substantially conforms to national standards. One such indicator addresses “[m]altreatment of children in foster care” and measures “[o]f all children in foster care in the State during the period under review, what percentage was the subject of substantiated or indicated maltreatment by a foster parent or facility staff?”

HHS has unequivocally

11 Id. at xviii.

12 “Accreditation Support Services,” available at http://www.cwla.org/consultation/accreditation.htm.

13 Council on Accreditation, “What Is a Standard and How Is it Assigned?” available at http://www.coastandards.org/pa_g_05_standard.php.

14 Council on Accreditation, “What Are the Fundamental Practice Standards?” available at http://www.coastandards.org/p_g_10_fps.php.

15 Id.

16 Id.

17 Council on Accreditation, “Service Narrative: Public Agency Foster Care Services (PA-FC)” and “Foster Care Services – Public Agency.”

18 U.S. Department of Health and Human Services, Administration of Children and Families, Children’s Bureau,

“Child and Family Services Reviews Fact Sheet,” available at

http://www.acf.hhs.gov/programs/cb/cwmonitoring/recruit/cfsrfactsheet.htm.

19 45 CFR Parts 1355, 1356 and 1357, Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews; Final Rule, Jan. 25, 2000, Dep. Ex. 379, at 4024.

20 HHS provides that “the national standard for each statewide data indicator . . . will be based on the 75th percentile of all State performance for that data indicator, as reported in AFCARS and NCANDS.” Id.

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prioritized safety as the overriding obligation of child welfare agencies, applying the principle that “children are first and foremost, protected from abuse and neglect” in promulgating the CFSR performance standards.

Each of the above performance standards may be dismissed by a struggling child welfare agency as an “ideal” or “optimal” benchmark that cannot be attained; and indeed, they most surely will not be attained if the agency is satisfied with mediocrity, being either unwilling or incapable of taking the necessary steps to reach the next level. Moreover, organizations that fail to reach for excellence only multiply the likelihood that they will fail to meet the average or expected as well. Child welfare agency leadership, therefore, must instill the values and practices embodied in the above standards if children under state protection are truly to be

protected. Many states, including Massachusetts, reflect many of the CWLA and COA standards in the written policies of their child welfare agencies.

Beyond the above standards, both the federal government and the state of Massachusetts have enacted laws and promulgated regulations that set requirements for the care and protection of children in state custody, including licensing requirements for governmental and private child placing agencies. In the preface to its published standards, CWLA provides that “[t]hrough the licensing of child-placement agencies, residential group care facilities, family foster homes, and child day care facilities, states and provinces exercise their police power to protect children from risks against which they would have little or no capacity for self-care and protection. . . .

Licensing is the basic protection provided by a state or province for the well-being of its children.”

In Massachusetts, the Department of Early Education and Care (“DEEC”) has promulgated licensing regulations that govern over DCF’s child protection program.

ORGANIZATIONAL STRUCTURE

DCF is housed in the Executive Office of Health and Human Services (“EOHHS”), the largest Commonwealth secretariat. The DCF Commissioner is a direct report to the Secretary of EOHHS.

In addition to DCF, the EOHHS is home to 16 health and human services

21 U.S. Department of Health and Human Services, Administration of Children and Families, Children’s Bureau,

“Child and Family Services Review Fact Sheet.”

22 Standards of Excellence for Services for Family Foster Care Services, xviii.

23 102 C.M.R. 5.00, et seq.

24 Fact Deposition of Angelo McClain, May 25, 2012, 10-11.

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departments or divisions.

Given the wide expanse of her responsibilities, EOHHS Secretary Judy Ann Bigby has delegated day-to-day oversight of DCF to Assistant Secretary Marilyn Chase.

DCF is organized in three tiers: central office, four regional offices, and 29 local area offices.

Each of the 29 DCF area offices maintains a screening function to receive allegations of child abuse/neglect as well as voluntary requests for services; teams of investigators/assessors to respond and exercise judgment regarding the most appropriate intervention with the family;

social workers to continue to work with the family to restore stability while continually assessing the risk of harm to children. The DCF central office maintains a special investigations unit to respond to allegations of child abuse or neglect in institutional settings, including but not limited to out-of-home living arrangements licensed and/or contracted by the Commonwealth. In addition, the Judge Baker Children’s Center and a team of emergency response workers and on- call supervisors receive and respond to after-hours emergencies.

CHILDREN IN DCF CUSTODY SUFFER MALTREATMENT IN CARE AT AN UNACCEPTABLY HIGH RATE

Going back to 2006, DCF has ranked among the bottom ten states in the country with respect to the frequency with which children in foster care are subjected to abuse or neglect by their state-chosen caregivers. As of 2010, federal data indicated that Massachusetts reported the 8^th highest rate of maltreatment in foster care in the nation.²⁹

In August 2009, time was running out for six year old C.M., a special needs child diagnosed with ADD and PTSD, when a police officer observed her being held down on the ground by her foster father with his hand covering her mouth and nose because he was “sick of hearing her crying.” The police report indicated that the child was thrashing about on the ground as though she was suffocating. The reporter observed redness around her mouth and face. The reporter’s parents lived across the street from the foster family and had observed the child to be frequently unsupervised in the neighborhood and yelled at by the foster father. The reporter indicated he once almost hit the child with his car as she was crossing the street without adult supervision. The foster parents were licensed through a private child placing agency as an Intensive Foster Home. The foster mother had a previous supported allegation of neglect for failure to report a sixteen year old foster child missing in 2001. The foster father was noted to have an unspecified brain injury with unknown impact on his behavior. The foster mother was pregnant at the       

25 Health and Human Services, “Departments & Divisions,” available at http://www.mass.gov/eohhs/gov/departments/.

26 Fact Deposition of Marilyn Chase, May 21, 2012, at 24-25.

27 DCF Organizational Chart, Dec. 2010, Dep. Ex. 58.

28 The Department of Children and Families After-Hours Emergency Response System Guidelines, DCF005688559- 94.

29 Children’s Bureau, Child Maltreatment 2010, at Table 3-20, Dep. Ex. 381..

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time of the incident. The allegation of abuse was supported against the foster father and the child was removed from the home during the course of the investigation.³⁰

The above episode involved an actual Massachusetts foster family – in this instance a privately recruited intensive foster home – not dissimilar from many others. The family was attempting to cope with multiple stressors – the foster mother was pregnant, the foster father had a brain injury and the child had special behavioral needs. This foster family, like so many other foster families, opened its home to do something good; not with an intention to harm. The foster father, like so many others, was not able to cope with the behaviors that the foster child was presenting. When children are victimized in care, they are re-traumatized, having already been subject to maltreatment in their families of origin. This episode underscores the importance of vigilant monitoring of safety in foster care through visitation, licensing, response to allegations of maltreatment, and internal and external systems of accountability.

Beginning in 2001, HHS has conducted CFSR evaluations of state foster care systems to monitor their performance and to encourage improvement in key child outcomes and practice areas. In assessing the safety of children in foster care, HHS has applied a statewide indicator that measures the percent of all children served in foster care who were not victims of a substantiated or indicated maltreatment by a foster parent or facility staff member during the fiscal year. For the first round of CFSRs, beginning in 2001, HHS set 0.57% as the national standard on this measure.³¹ This national standard was reduced to 0.32% for the second round of CFSRs, which began in 2007.³² Massachusetts has never met either the initial or the revised national standard and, as of March 31, 2012, reported an annual rate of maltreatment in care of 0.8%, two and one-half times the national standard of 0.32%.³³

Performance data reported by DCF to the federal government has for several years placed Massachusetts among the bottom ten performers in the nation with respect to the frequency of maltreatment to children in state foster care.³⁴ Massachusetts has fared no better than eighth from the bottom since 2006 using the HHS data indicator for maltreatment in care as the yardstick.³⁵ In state fiscal years 2008, 2009 and 2010, this meant that 181, 137 and 116 children, respectively, became victim to

30 DCF000924516-24; DCF005886053

31 Child Welfare Monitoring Background Paper, available at:

http://www.acf.hhs.gov/programs/cb/cwmonitoring/legislation/background.htm; CFSR Schedule 2001-2004, available at: http://www.acf.hhs.gov/programs/cb/cwmonitoring/general_info/tent_schd.htm

32 Table A, Data Indicators for the CFSR, available at :

http://www.acf.hhs.gov/programs/cb/cwmonitoring/data_indicators.htm; CFSR Onsite Review Schedule for Round 2, available at: http://www.acf.hhs.gov/programs/cb/cwmonitoring/general_info/fy07_10.htm

33 MA_DCF_CFSR_Scorecard_12MosEnding_2012_03_Percent Achieved

34 Children’s Bureau, Child Maltreatment 2010, at Table 3-20, Dep. Ex. 381.

35 Children’s Bureau, Child Maltreatment 2010, at Table 3-20, Dep. Ex. 381.

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maltreatment while under the “care and protection” of DCF.³⁶ The total of 116 child victims in state fiscal year 2010 translates to an average of two supported incidents of maltreatment in DCF foster care every week of the year. Moreover, as shown in the above data, 2010 was not the exception, but followed a consecutive stretch of years with similarly alarming abuse and neglect statistics. These results are unacceptable.

This consistent pattern of maltreatment in foster care should have led responsible child welfare agency leadership to undertake urgent examination of all aspects of the system’s safety net, so that needed repairs could be made. The documents and deposition testimony reviewed in this assessment, however, reveal no such urgent action by DCF leadership. Rather than critically evaluating agency structures and practices to identify causes for the high rate of maltreatment in foster care, agency management instead has sought to explain away its low national performance as the result of variability among the states in terms of child protective services standards and timetables.³⁷ However, an internal email produced by DCF in the Connor B. v. Patrick lawsuit shows that Commissioner McClain recognized the flaws in this explanation as far back as December 2010.³⁸ Commissioner McClain stated in that email, “in reviewing the maltreatment tables, I noticed that 46-49% of states met the national standard in 2009; which puts a

‘hole’ in part of our talking points regarding the national standards.”³⁹

Nevertheless, in late 2011, DCF management continued to paper over serious safety problems borne out by its own maltreatment in care data, going so far as to change its internal performance rating system so that the same unacceptable rate of maltreatment in foster care that DCF had once given its lowest rating of “Action Warranted,” is now given its highest ratintg, an “A+.”⁴⁰ This represents an astounding abrogation of the responsibility to exercise due diligence in assuring child safety and a wilfull failure to meet standards of care.

An assessment of the safety net hinge pins – caseworker/child visitation, timely licensure and reassessment, timely and effective response to allegations of maltreatment in care, and internal and external systems of accountability - reveals that DCF’s poor safety record results from systemic weaknesses in each of these areas.

36 Defendants’ Responses and Objections to Plaintiffs’ Second Set of Interrogatories, April24, 2011, Dep. Ex. 361, Responses to Interrogatories Nos. 1 and 2. Note that the downward trend in total victims from 2008 through 2009 followed a downward trend in the foster care population.

37 Fact Desposition of Angelo McClain, May 25, 2012, at51-52, 66-68; Fact Deposition of Ruben Ferreira, Feb. 2, 2012, at 216-217.

38 Email and attachment from Angelo McClain to Ruben Ferreira, December 17, 2010, Dep. Ex. 211, DCF005288695-698

39 Email and attachment from Angelo McClain to Ruben Ferreira, December 17, 2010, Dep. Ex. 211, DCF005288695-698

40 Dep. Ex. 265; Dep. Ex. 253; Dep. Ex. 73A.

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CHILDREN IN DCF FOSTER CARE ARE PLACED AT RISK OF MALTREATMENT IN CARE DUE TO THE AGENCY’S FAILURE TO CONSISTENTLY UNDERTAKE

MONTHLY VISITS WITH CHILDREN

In February 2009, then16-year-old K.S. admitted to her therapist that her foster mother had forcibly inserted a bar of soap into her mouth during an altercation. When DCF spoke to the foster mother, she informed them that she had also slapped K several times across the face and tied her hands behind her back with an electrical cord. Two separate 51As were filed. DCF Home Visit reports for the Framingham Area Office show that K had not been visited by her DCF social worker since October 2008, more than 90 days prior to the incident. Had a worker visited the home, observed the foster mother and spoken with K, the youth may have been spared this abuse.⁴¹

There is no disputing that visitation, whether with the child, the family of origin or foster home, is a most critical aspect of professional child welfare intervention. DCF shares this view and its policies underscore the importance of maintaining regular contact between social worker and family/child.⁴² The DCF Integrated Case Practice Model (“ICPM”) further indicates that visitation is important to address safety needs.⁴³. The federal Administration for Children and Families, Children’s Bureau has noted that the Child and Family Services (CFSR) review process has “found a strong correlation between frequent caseworker visits with children and positive outcomes for these children.”⁴⁴

In testimony offered by Commissioner Angelo McClain at the Joint Hearing of the House and Senate Committees on Ways and Means (February 27, 2012), he indicated that DCF had “taken and continue[d] to take steps to increase [ its] effectiveness in keeping children safe” and underscored the

“strong correlation between the frequency of worker contact and better outcomes for children and families.”⁴⁵ Commissioner McClain failed to illuminate for the legislature that DCF data consistently had reflected and continues to reflect a range of mediocre to poor performance in home visitation, even as DCF management is acutely aware of this problem.

DCF management has failed to exercise strong leadership to assure that social workers are maintaining a high rate of child engagement. Ultimately the social worker and line supervisor must be held accountable, up to and including disciplinary action where appropriate. Child safety requires this degree of vigilance.

41 DCF000924136, DCF0000924144; DCF000741488, DCF000741432, DCF000741435.

42 DCF Policy, Social Worker-Client Contact and Child-Family Visitation for Cases with Children in Placement, DCF POL (7/08) 139-140

43 Massachusetts Department of Children and Families, Integrated Casework Practice Model (December, 2009), p.2, DCF001953308-319:309.

44 U.S. Department of Health and Human Services, Administration on Children, Youth and Families, Children’s Bureau, Program Instruction, Log No. ACYF-CB-PI-07-08 (May 30, 2007), p. 1.

45 Executive Office of Health and Human Services, Fiscal Year 2013 Budget Hearing before the Joint Committee on Ways and Means, (February 27, 2012), p.6, EOHHS000073800-867:821.

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An e-mail (dated February 11, 2011) from Olga Roche, Deputy Commissioner of Field Operations, to DCF executive and senior management identifies the need for improvement in the department’s visitation of children in foster care:

In reviewing recent cases I have noticed that family/child visits have been inconsistent and children may not have been seen for several months at a time. Seeing children, and assessing their safety and well-being, is one of our basic responsibilities, if not the most important one. It is imperative that we adhere to our policies and procedures regarding visits to families/children. Therefore, I am requesting that you review with your staff the importance of children being seen, minimally once per month, by the social worker and to document the conditions of their care and interactions with them.⁴⁶

A DCF statewide monthly operations statistical report for March 2011, the timeframe of Ms.

Roche’s email, revealed that 16.1% of children in out-of-home care statewide had not received a monthly face-to-face visit from their caseworker.⁴⁷ This report also indicated that the visitation performance across the 29 area offices ranged from a high of 92.8% to a low of 70%.⁴⁸ Six area offices reported visitation rates below 80%, including the Greenfield, Worcester East, Haverhill, Framingham, Lowell and East Harbor Area Offices.⁴⁹

In an April 6, 2011e-mail o the Area Directors in his region, Raymond Pillidge, Northern Regional Director stated:

We have been discussing since October [2010] our very uneven performance as a region related to monthly home visits for children and our commitment to prioritizing this task.

As you saw from the data distributed yesterday Supervisory units still range considerably on this outcome from 37% to 97%. In addition,“Children not seen for three months or more” ranges from zero to 37 per cent.⁵⁰

Thus, six months after the start of discussions in October 2010, Regional Director Pillidge finally charged the Area Directors to meet with their supervisors whose units were operating below seventy percent (70%) to determine the reasons for their poor performance, and to begin to provide “support and concern in equal measure.”⁵¹ This sluggish pace of response does not reflect an appropriate degree of urgency and seriousness within DCF management to rectify poor visitation practice known to elevate the risk of harm to children.

46 Email from Olga Roche to Virginia Peel, February 13, 2011, DCF005882924-25.

47 Monthly Operations Statistical Report, March 2011, Dep. Ex. 55.

48 Monthly Operations Statistical Report, March 2011, Dep. Ex. 55.

49 Monthly Operations Statistical Report, March 2011, Dep. Ex. 55.

50 Email from Raymond Pillidge to Laurie McNeil, John Doyle, Corinne Contarino, and Richard Ho, April 6, 2011, DCF005484940 (emphasis added).

51 Email from Raymond Pillidge to Laurie McNeil, John Doyle, Corinne Contarino, and Richard Ho, April 6, 2011, DCF005484940.

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DCF management has identified at least two potential causes of the Department’s erratic monthly visitation practice: poor documentation of visits in child case files and excessive caseloads. Specifically, Paul Fitzsimmons, Western Regional Director, when deposed by counsel for the plaintiffs on September 28, 2011, testified that low visitation percentages and Area Office variation could be due to “poor documentation, new staff, a need for new staff perhaps causing caseloads to be high.”⁵² Neither of these explanations is satisfactory. More importantly, neither has been effectively evaluated or resolved by management. For example, upon follow-up questions regarding the Worcester Office’s visitation performance, Regional Director Fitzsimmons could neither recall any discussion on the issue with the Area Director, nor whether performance had improved since the March 2011 MOST report was distributed.⁵³

The rate of performance on active engagement with children is unacceptable and cannot be explained away as a matter of slow documentation. Not only do social workers have up to thirty days to complete case dictation, DCF runs the monthly caseworker visit data report “60-days in arrears to give direct service staff the opportunity and time to update their case records.”⁵⁴

By agency policy, social workers are required to enter dictation as soon as possible after a contact – and up to thirty (30) days thereafter - into the agency’s FamilyNet case record.⁵⁵ While delayed

documentation hinders the agency’s capacity to closely monitor caseworker performance in this key activity, this is a secondary concern. Of more importance, delayed documentation potentially places children at risk. For example, whenever the planned or unplanned absence of the assigned social worker requires a substitute social worker to respond to a case, missing information may deprive that substitute caseworker of the knowledge required to resolve a crisis or problem. Moreover, the assigned supervisor cannot be expected to know everything about a family situation based on case conferences with the ongoing caseworker, even when they occur on a weekly basis, and there is no provision in the above- referenced policy requiring supervisors to review and sign-off on dictation. Further, while social workers may keep notes of their contacts to refresh memory when inputting their dictation, potentially important details of a visit are nonetheless likely to be lost over the thirty day passage of time.

Excessive caseloads prevent DCF caseworkers from consistently visiting children in out-of- home care on a monthly basis, in accordance with agency policy.

52 30(b)(6) Deposition of Paul Fitzsimons, September 28, 2012, p. 149.

53 30(b)(6) Deposition of Paul Fitzsimons, September 28, 2012, p. 150

54 Massachusetts Department of Children and Families, Annual Progress Report, Federal FY2012, Monthly Caseworker Visit Data (June 30, 2011), p. 80, DCF007413685-884:765.

55 Ongoing Casework Policy, Procedures and Documentation, DSS Policy #86-001, effective April 1, 1986, revised July 1, 1989.

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The social worker’s capacity to complete quality home visits directly correlates to the number of children and families on the caseload (quantity), as well as the complexity of the issues the social worker is assisting the families to address (quality). “A U.S. Children's Bureau document, Workload Standards for Children and Family Social Services, differentiates caseload and workload measures as follows: (1) caseloads are defined as the amount of time workers devote to direct contacts with clients; and (2) workloads are defined as the amount of time required to perform a specific task.”⁵⁶

Although the field has not arrived at a universally accepted formula due to the variance of agency settings, the profession looks to the Child Welfare League of America for standards of excellence

regarding caseloads. The CWLA recommends Initial Assessment/Investigation (intake) caseloads of twelve (12) active cases per month; Ongoing Cases (active, in-home) caseloads of seventeen (17) active families, no more than one (1) new case assigned for every six open cases; Combined Assessment/

Investigation and Ongoing Cases of ten (10) active on-going cases and four (4) active investigations;

Foster Family Care caseloads of twelve to fifteen (12-15) with a supervisor to social worker ratio of one to five (1:5).⁵⁷ According to the CWLA these standards are meant “to offer guidance based upon the field's consensus of what constitutes best practice. . . . provid[ing] some direction for agencies, public and voluntary, on how best to maximize the state-of-the-art in child welfare practices.”⁵⁸

DCF maintains hybrid caseloads for its ongoing caseworkers comprised of in-home and placement cases, a circumstance which often presents the social worker with competing demands.⁵⁹ In any event, the caseload maximum for ongoing caseworkers, as established in collective bargaining negotiations years ago, is 17 families per worker without any cap on the total number of children in that caseload. This means that workers frequently carry caseloads with more than twenty or even thirty children under their case management. This reality alone represents an undue burden on the caseworker.

In circumstances such as when a caseload contains multiple sibling groups placed separately in out-of- home care, the burdens on the caseworker can rapidly multiply even further. DCF likely must reduce its caseloads if caseworker/child visitation is to be accomplished in a consistent and quality fashion.

Given the complexity and challenges of the work, DCF must arrive at a reasonable caseload standard and assure there is adequate staffing and support to adhere to the standards it establishes.

The safety net for children is severely compromised when the organization is inadequately staffed, particularly on the front lines.

56 Child Welfare League of America, News and Media Center, Recommended Caseload Standards, http://www.cwla.org/newsevents/news030304cwlacaseload.htm, (accessed August 11, 2012).

57 Child Welfare League of America, News and Media Center, Recommended Caseload Standards, http://www.cwla.org/newsevents/news030304cwlacaseload.htm, (accessed August 11, 2012).

58 Child Welfare League of America, News and Media Center, Recommended Caseload Standards, http://www.cwla.org/newsevents/news030304cwlacaseload.htm, (accessed August 11, 2012).

59 30(b)(6) Deposition of Jan Nisenbaum, January 13, 2012, p. 74-75, 111-117.

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In addition to the immediate safety threats for children, the agency will face significant fiscal sanctions in federal Title IV-E and IV-B appropriations if it does not manage significant, sustained improvement in visitation. A recent program instruction (PI) issued by the federal Administration for Children and Families raises the bar on monthly caseworker visits to children in foster care. Jurisdictions are required in each of FFYs 2012 – 2014 to visit children in foster care on a monthly basis ninety percent (90%) of the time; and at least fifty percent (50%) of those visits must take place in the child’s

residence.⁶⁰ (Increases to 95% after FFY 2015.) Jurisdictions that fail to meet these benchmarks will be subject to Title IV-E and IV-B reductions. The PI indicates that “changes to sections 424(f)(1)(B) and 424(f)(2)(B) of the [Social Security] Act require a reduction in Federal Financial Participation (FFP) for failure to meet the percentages of monthly caseworker visits and visits in the child’s residence as

prescribed in statute.”⁶¹ The PI specifies that if the agency falls short by (a) less than ten percent, (b) ten percent to less than twenty percent, or (c) twenty percent or more the federal match will be reduced by 1%, 3% and 5% respectively and “FFP reductions will be separately assessed” for each requirement.⁶²

Without considerable sustained improvement in visitation rates to children in foster care, DCF will experience fiscal sanctions which will further cripple the agencies capacity to provide staff, services, etc. to shore up the safety net for children. Particularly in the present fiscal climate, DCF can ill-afford to sacrifice FFP.

The Commonwealth would not find it acceptable for any parent or primary caregiver to indicate that they had not seen their child in their custody for sixty to ninety days. Minimally it would be considered neglect and would likely result in the removal of the children from the home and placement into foster care. However, the family of origin has little recourse when DCF is neglectful in loco parentis. The safety net for children is severely compromised when the agency fails to assure that monthly visitation is taking place and timely documented in the case record.

CHILDREN IN DCF FOSTER CARE ARE PLACED AT RISK OF MALTREATMENT IN CARE DUE TO INCONSISTENT AND UNTIMELY LICENSING, HOME

REASSESSMENTS AND LICENSING RENEWALS

In June 2009 a representative of a private child placing agency (“CPA”) reported that M.P., an experienced foster parent with the agency since 2003, had allowed an adult male to reside in the home and to function as a caregiver to the two foster children in the home. His presence had not been reported to DCF or the CPA, and he had not been subject to a CORI check. The allegations represent a violation of agency policy that requires that regular visitors to the home are minimally subject to a CORI check.

The allegations were jointly investigated by SIU and the CPA. The investigation concluded that the adult male did not reside in the home, but was a frequent visitor and that he had transported one of the       

60 U.S. Department of Health and Human Services, Administration on Children, Youth and Families, Children’s Bureau, Program Instruction, Log No. ACYF-CB-PI-12-01 (January 06, 2012), p. 2.

61 ACYF-CB-PI-12-01, p. 5-6.

62 ACYF-CB-PI-12-01, p. 5-6.

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children on a daily basis. Ultimately the adult male consented to a CORI check and his background was cleared. (This same allegation led to an assessment of the physical plant resulting in a list of fifteen (15) concerns from as simple as the need to tighten the railings on the stairway to serious safety issues such as missing fire extinguishers and carbon monoxide detectors on each floor of the residence, an expired boiler inspection, and possible mold on the bathroom ceiling.) The children were permitted to remain in the home as in their best interests given their goals of adoption.⁶³

In September 2009, C.L., then 14 years old, was sexually abused by her foster mother’s boyfriend. Although the foster mother claimed he did not live in the home, he was present in the home and had sufficient unsupervised access to C.L.to invite her into his van outside the foster home, where he exposed himself and performed sexual acts in front of both C.L.and his 3-year old daughter who was also in the van. Either no one from DCF was aware that the unscreened individual was spending unsupervised time with the child, or they did and failed to run a background check on him. Had background checks been run on the boyfriend, they would have revealed multiple charges and 2 restraining orders against two separate women.⁶⁴ The foster home was subsequently closed.⁶⁵

Fortunately in the first case above the adult male was determined to pose no immediate threat to the children. In the second case example, however, the child suffered sexual abuse and accompanying psychological damage due to the presence of a dangerous predator in the foster home. In both cases, it is important to emphasize that the state foster care system hand-selected the child’s caregiver. The problem is that DCF has no formal mechanism, particularly in the absence of adequate caseworker-child visitation in the placement, to know when new individuals reside in or frequent the foster home or have unfettered access to the children. DCF must rely upon self-reporting by the foster family. Alternatively, the social worker for the children in the home, the resource family worker, or the contract provider may take notice and report new individuals in the home. The dynamic nature of family life makes timely reassessment of foster homes critical to assuring safety as it entails a comprehensive review of the family, including updating criminal background checks on all residents of the home, including new members of the family constellation. The reassessment is also an opportunity to determine areas where the foster family needs additional support or training.

What began as an investigation of people in the home who had not been cleared resulted in identifying significant concerns about the safety of the physical plant. In addition to the home conditions mentioned above, the home was noted to be in a general state of uncleanliness and there was no clear path of egress from the basement. Taken together, the elements under investigation and the findings underscore the importance of timely re-assessments.

The Licensure Scheme in Massachusetts

63 DCF00925639; DCF005886940; DCF009496980-5.

64 DCF005417032.

65 Homes Closed on FamilyNet, DCF000736202.

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Licensure in a foster care system takes two forms: the licensure of the overall child placing agency, whether public or private, and the licensure of individual foster homes recruited by these child placing agencies. Timely and rigorous licensing processes are a critical means by which child welfare agencies meet their obligation to assure the safety of the children in their custody. In Massachusetts, this function is fulfilled by the Department of Early Education and Care (“DEEC”). DEEC has promulgated regulations that govern licensure of child placing agencies, adoption agencies, and residential facilities in Massachusetts. These regulations establish a licensing scheme for child placing agencies and residential providers that operates on a two-year cycle.⁶⁶ Under DCF regulations and policy, all foster homes, contracted and departmental, restricted and unrestricted, are placed on a two-year licensing cycle.⁶⁷ One year after issuance of a license, foster homes must undergo an annual reassessment and the following year the licensing must be renewed.⁶⁸

DCF regulations require the completion of a full home study for the purposes of licensing, including approval or denial of the home within 40 working days after a child is placed in a kinship or child specific home.⁶⁹ Regulations further require completion of a full licensing study within 30 working days after the last day of foster parent training for unrestricted foster care providers.⁷⁰ Finally, regulations and policy require reassessment of licensed foster homes within 12 months of the initial license and every other year thereafter and re-inspection for license renewal on the alternate year.⁷¹ The DCF Foster Care Quarterly Report is used to track a number of performance measures related to foster home inquiries, reassessments, and safety. The safety measures addressed in this report are “Completion Restricted ([Kin/Child Specific]) Home Studies in 40 Working Days” defined as “[t]he restricted home studies within the report quarter completed within 40 working days as a percentage of all restricted homes studies due to be completed,” and “Timely Annual Re-assessments / License Renewals” defined as “any home where a reassessment or license renewal has been completed within one year of the last day of the report quarter as a percentage of all home studied foster homes” in the report quarter.⁷²

DCF has long failed to timely conduct the licensing process on foster homes with respect to initial homes studies, annual reassessments and biannual renewals. This places children in danger.

66 102 C.M.R. 5.03(2)-(4)

67 110 C.M.R. 7.107; Policy #2006-01: Family Resource Policy, Feb. 6, 2006, Dep. Ex. 43, DCF000234335-94, at DCF000234346-50, DCF000234354-61.

68 110 C.M.R. 7.113; Policy #2006-01: Family Resource Policy, Feb. 6, 2006, Dep. Ex. 43, DCF000234335-94, at DCF000234346-50, DCF000234354-61.

69 110 C.M.R. 7.108.

70 110 C.M.R. 7.107.

71110 C.M.R. 7.113; Policy #2006-01: Family Resource Policy, Feb. 6, 2006, Dep. Ex. 43, DCF000234335-94, at DCF000234346-50, DCF000234354-61.

72 See, e.g., FY 2012 Q3 Quarterly Foster Care Report.

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DCF has long been aware of the need for marked improvement in its licensing efforts and compliance with related regulation and policy. In fact, the Massachusetts State Auditor expressed concerns about the DCF process for licensing foster homes in a report issued in April 2005. The State Auditor acknowledged that there had been some improvement since the 2004 audit however noted that lateness of home licensing or annual reassessments continued to occur. Specifically, the report indicated the process was in need of improvement indicating that “the lack of proper licensing could result in children being placed in an unsafe environment, noncompliance with DSS policy, and ineligible claims for federal reimbursement.” The State Auditor recommended that DSS should (1) immediately identify homes that were out-of-compliance and subject them to a timely review, (2) establish the capacity for centralized quality assurance and continuous quality improvement, and (3) maximize federal reimbursable expenditures by ensuring that timely licensing renewals.⁷³

DCF also had the results of the HHS Title IV-E Foster Care Eligibility Review (November 2009) in which DCF failed to substantially comply with federal requirements during the period under review (10/1/2008 – 03/31/2009) and was required to submit a program improvement plan regarding (1)

licensing requirements for children placed in foster family homes and (2) safety requirements for children placed in foster care. HHS found that “in several of the error cases, the child had been living in the foster care setting for extended periods either prior to full licensure of the placement or prior to the safety requirements being met for the child’s placement.”⁷⁴

DCF practice in the area of timely annual reassessments statewide is floundering as evidenced through comparison of the most recent Quarterly Foster Care Reports for the first and third quarters of FY2012. In the first quarter, eighty-four percent (83.9%) of annual reassessments were completed.⁷⁵ The third quarter report, dated July 23, 2012, represents a sharp decline in performance to seventy-six percent (76%) for the quarter and eighty-one percent (81%) completion year to date.⁷⁶ Regional variance in performance on this indicator ranged from ninety percent (90.4%) completion to a deeply troubling low of fifty-eight percent (58.3%).⁷⁷ The data indicate that DCF consistently fails to assure the timely

assessment and renewal of foster home licenses, departmental unrestricted and restricted homes, as well as contracted foster care homes. DCF has the information technology to monitor this critical process point; however, follow-up by DCF managers to hold staff accountable for adherence to agency policy is       

73 Independent State Auditors Report, April 14, 2005.

74 Letter and enclosure from Joseph J. Bock to Commissioner Angelo McClain, Apr. 2, 2010.

75 Massachusetts Department of Children and Families CQI/OMP, Quarterly Foster Care Report – Statewide, Report Quarter: FY2012, Q1 (October 17, 2011).

76 Massachusetts Department of Children and Families CQI/OMP, Quarterly Foster Care Report – Statewide, Report Quarter: FY2012, Q2 (July 23, 2012).

77 Massachusetts Department of Children and Families CQI/OMP, Quarterly Foster Care Report – Statewide, Report Quarter: FY2012, Q3 (July 23, 2012), (produced to Plaintiffs by Defendants on August 13, 2012).