NASHVILLE, Tenn. (WTVF) — Ongoing problems at the Department of Children's Services could lead to a class action lawsuit on behalf of all kids in Tennessee's foster care system according to a prominent Nashville attorney.
David Raybin was one of the attorneys involved in a similar lawsuit against DCS in 2000.
Raybin said "very active discussions" are underway and "unless the state steps up" another lawsuit could be coming.
The lawsuit in 2000 led to a court takeover of the Department of Children's Services.
Raybin said high turnover among case workers, high caseloads and not enough foster homes mirror the problems the department faced more than 20 years ago.
In 2000, a children's advocacy group sued then-Governor Don Sundquist on behalf of all foster kids in Tennessee.
"Because the kids are so powerless, they have no constituency. They have no voice, and we were their voice. And we are going to speak up again unless the state steps up and does this," Raybin said.
The lawsuit in 2000 came to be known as Brian A.
Brian was a 9-year-old foster child from Memphis, who attorneys claimed went without schooling and mental health treatment because DCS had nowhere to place him.
Court supervision of Tennessee's foster care system did not end until 2019, nearly twenty years after the lawsuit was filed.
"They have just slipped right back into the old ways, and it is unnecessary, and it is wrong," Raybin said.
When NewsChannel 5 Investigates asked, "is there talk about another lawsuit like Brian A.?" Raybin responded, "we have had very active discussions with Children's Rights in New York."
Children's Rights led the Brian A lawsuit which cited "extraordinary turnover of DCS case managers" leading to "dangerously high caseloads" ensuring foster kids don't "receive necessary services."
We talked to foster parents earlier this year who raised similar concerns.
"This individual didn't have a case manager, so I didn't know who to go to. Who do I call if there is no case manager to call?" asked foster parent Kelli Stidham in March.
She said she takes in foster kids but cannot get in touch with case managers to get important information and services.
Other foster parents told us the same thing.
"You asked questions and you get, 'well that's not the case worker anymore. OK, well who is the new case worker and when are they going to reach out to us?' And you reach out and you hear nothing," said foster mom Jennifer Snook.
Snook said one of her foster kids had five different case workers in just 18 months.
DCS said it has 2,765 budgeted caseworker positions. But in March —- 609 of those positions were unfilled.
DCS pointed to the pandemic and acknowledged it "is experiencing unprecedented turnover in case managers like most other state child welfare agencies — and all industries — across the country."
But the department has admitted some workers have 50 or more cases a month despite a law that limits the average caseload to 20.
Davidson County Juvenile Court Judge Sheila Calloway voiced concern about the number of abused and neglected children taken into custody who sleep in state office buildings because there is no foster home.
Our investigation found more than 40 kids who ran away from the DCS office building at 500 James Robertson Parkway in the last year. They were all eventually listed as a missing person in police reports.
NewsChannel 5 Investigates asked the judge, "how surprised are you to see all these missing person reports?"
Judge Calloway responded, "It's unfortunate, but I'm not surprised. I'm not surprised."
Judge Calloway called the situation at DCS a "crisis."
"We have to acknowledge we have a problem. We are in a crisis. We have to acknowledge that in order to solve the crisis." Judge Calloway said in April.
In 2000, the Brian A. lawsuit cited "an atmosphere of intimidation exists within DCS" and claimed it "deters advocacy for children in custody by case managers."
A leaked employee survey last year blasted the department's leadership and cited a toxic work environment.
Last summer a caseworker released cell phone video showing kids sleeping in a DCS office building.
The children had been removed from their unsafe home, but DCS had no foster home for them.
"They're sleeping on the floor. They don't even have blankets. That's demeaning. We just told them they don't matter," said former DCS case worker Terri Nelson.
Nelson told us she released the video because people needed to know what was happening, but she was later fired by the department.
"I definitely thought it would, it could put a target on my back," Nelson said last year.
Attorney David Raybin is urging DCS and Gov. Bill Lee to make changes.
He said many in state government do not remember the Brian A. lawsuit.
"They are so short-sighted and have no memory. There's no institutional memory. All of the people who were around when Brian A. was happening are gone," Raybin said. "The state has an absolute obligation to step forward and make it right for these kids, and they're not doing it."
Raybin said a potential class-action lawsuit like Brian A. would cost taxpayers millions of dollars.
He described that kind of litigation as "thermonuclear war," and said the money, time and effort would be better spent on the system before a lawsuit happens.
