This story has been revised to reflect the fact that while Child Protection Services is in non-compliance of a court order regarding caseloads, the agency is not in contempt of court until a judge issues an order of contempt.
The state’s Department of Child Protection Services has once again violated a court order in the long-running Olivia Y settlement, the lawsuit responsible for dismantling and then rebuilding the state’s foster care system, according to a lawyer for the plaintiffs in the case.
Last week, Marcia Lowry of the New York-based firm A Better Childhood sent a letter of non-compliance to Child Protection Services. According to the letter, the agency has been in violation of a court order since Dec. 31 for not employing enough caseworkers to properly monitor children in the system, a breach of the agreement signed just 15 months ago.
“We were living, perhaps, in a fool’s paradise,” Lowry said by telephone. “We had been assured last year that they would be in compliance.”
When contacted by Mississippi Today, CPS commissioner Jess Dickinson, who took the reins in September, did not dispute Lowry’s findings, which showed that more than 39 percent of caseworkers at the agency had caseloads that were too high. According to the most recent consent agreement, that number should have been just 10 percent by the end of 2017.
Dickinson said he was aware the agency had fallen short but had hoped for leniency from the plaintiffs until the agency had the funds to comply with the settlement.
“We are not going to be able to comply this fiscal year,” Dickinson said. “We’re doing the best we can. And hopefully we will get properly funded (for next year), and if we do, we think we can take care of this problem.”
If the agency remains non-compliant a judge could find the agency in contempt, risking court takeover, though Lowry calls this a last resort. Lowry said she will meet with the agency within the next 30 days to discuss next steps.
It’s a stunning reversal for the young agency. Although the Olivia Y litigation has dragged on for 14 years, since the Legislature created the new Department of Child Protection Services in 2016, the agency seemed to be moving in the right direction. Last year, former commissioner David Chandler received a national award for improvements to the state system, and in his State of the State speech in January, Gov. Phil Bryant made a point of praising the agency and Dickinson.
But CPS’s violation of the court order is one in a series of high-profile snafus the agency has experienced in recent months. On the same day as Bryant’s State of the State, Dickinson shocked lawmakers when he told the Senate Appropriations Committee that CPS was facing a $39 million deficit for 2018.
“It’s just kind of blown us away,” Senate Appropriations Chair Buck Clarke, R-Hollandale, said in January. “Everything we’d heard up to that point was that the agency was fine.”
But, according to Dickinson, the agency was not fine. A legislative error had caused CPS to miss out on tens of millions of dollars in federal matching funds from the Department of Human Services. Legislators, who have largely assumed responsibility for the error, have said they calculated the agency’s budget assuming those funds would be available.
Dickinson has maintained that he discovered the problems with CPS within weeks of taking the agency reins, although he did not inform legislators until December. The previous administration at CPS was either unaware of the issue or had not informed lawmakers about the problem, he said.
By working with the Department of Human Services and making internal changes, the agency ultimately reduced its deficit request to $12 million. The trade-off of reducing the budget, however, has been massive spending cuts. As a result, CPS will not be able to increase the number of caseworkers this year, meaning the agency is getting even farther away from the compliance goals agreed upon in the settlement.
But Dickinson said Monday that the deficit has nothing to do with the accusation of non-compliance. In fact, he said the agency wasn’t on track to comply with the settlement long before the deficit was uncovered, bolstering claims he has made since January that the agency was already in disarray when he came on board last fall.
“The deficit had nothing to do with the fact that we were not in compliance as of Dec. 31,” Dickinson said, referring to the date by which Lowry’s letter said CPS had violated the order. “We never stopped trying to hire as many people as we could hire, but we haven’t been able to keep them. … And we determined that a major factor in our ability to hire and retain staff was their low pay.”
In January, the state Personnel Board gave CPS permission to raise the salaries of its caseworkers, who work directly with families and children in the foster care system, from approximately $26,000 to $30,000 a year. Dickinson said that has stemmed the turnover, but by the time the raise was implemented, the deficit had been uncovered. The agency could not afford to spend more on salaries than it was already spending.
When asked about Dickinson’s assessment, former commissioner Chandler said that during his tenure the agency was on track to be compliant with the settlement agreement, which he had signed the year before.
“I have talked with every employee who held a key management position in my administration and they unanimously agree that during our entire administration: 1. We always met all requirements of the federal court order and we accomplished this within budget. 2. At my departure, we were confident that the foundation we had established would enable CPS to continue meeting all requirements of the federal court order within budget. 3. Despite the challenges of the federal litigation, we made sure that every single day our focus was on the best interest of every single Mississippi Child.”
Lowry agreed that the agency made significant strides in complying with the other terms of the settlement agreement last year. These included licensing more than 500 unlicensed foster homes, establishing protocol to prioritize severe cases and providing all caseworkers with computers or tablets for field work.
“They did a lot of good things during 2017,” Lowry said. “(But) the goal was to build capacity so that by the time we got to 2018 we were able to deliver on these conditions. … We were hopeful this was going to be a new era for Mississippi’s Department of Child Protection Services.”
But why the new CPS finds itself repeating old patterns remains unclear, according to Lowry. She said the budget that Chandler submitted to the court last year showed “a lot more federal income” than the agency said it ultimately received. But Lowry said that until she receives more data she won’t know where the breakdown occurred or who was ultimately responsible for it.
Under the terms of the most recent settlement agreement from 2016, CPS had avoided being closely monitored by the plaintiffs, according to Lowry. Lowery said that is likely to change.
“Somebody here is not being candid, and I don’t know who it is,” Lowry said. “All I know now is that they are not in compliance with the settlement. I think the kids of Mississippi deserve better.”
Under Olivia Y, which was filed in 2004, six children in foster care sued the state of Mississippi for failing to adequately provide for children in its custody. A federal court sided with the plaintiffs, known collectively as Olivia Y, and the resulting settlement has completely remade the agency.
Arguably the biggest mandate was to turn Mississippi’s former Division of Family and Children Services, which had once been housed within the Department of Human Services, into a standalone agency.
But doing so made the agency ineligible for certain federal funds the agency had received as part of the Department of Human Services. Legislative leaders, for their part, have largely taken responsibility for that oversight, and a bill that would make CPS a sub-agency of DHS—and therefore eligible for its higher match rate—is likely to end up on the governor’s desk.
Although state officials often mention Child Protection Services as a priority, Lowry notes that the part of the settlement that the agency failed to comply with — hiring staff — was also the one that cost the most money. And deciding whether the agency receives that money, Lowry said, is ultimately the responsibility of the state’s elected officials.
If filling the deficit won’t help the agency meet its contractual obligations, Lowry said, the Legislature needs to give the agency enough money so that it can.
“They need to do something and they’re not doing it,” Lowry said. “I don’t know at this point what the problem is, but certainly the state ought to be able to come up with the money so they can fund the employees.
“They absolutely have to do that. They can’t run the agency constitutionally without it.”