Olivia Y. v. Barbour
United States District Court for the Southern District of Mississippi – Jackson Division
Date lawsuit filed: March 30, 2004; Amended Complaint, May 17, 2004.
Status: Lawsuit and motion for class certification filed March 30, 2004; Amended
Complaint adding seven additional named plaintiffs filed on May 17, 2004. Class
certification granted on March 11, 2005. Stipulated settlement on liability reached by
parties on March 28, 2007, and approved by the court on June 15, 2007. Final
settlement agreement and reform plan agreed to by parties on November 7, 2007,
and approved by the court on January 4, 2008.
Co-counsel: Wayne Drinkwater and Melody McAnally, Bradley Arant Rose & White
LLP, Jackson, MS; Stephen Leech, Attorney at Law, Jackson, MS; John Lang,
Christian D. Carbone and John Piskora, Loeb & Loeb LLP, New York, NY.
Defendants: Governor of Mississippi, Executive Director of the Mississippi
Department of Human Services, and Director of the Mississippi Division of Family and
Reason for filing lawsuit: For over a decade, the State of Mississippi had known
that it was failing in its obligation to protect abused and neglected children. The
state’s child welfare system had simply collapsed under years of gross
mismanagement and severe underfunding. Many people involved in the child welfare
system had said that it was so broken that there was virtually no child welfare
system in Mississippi. Successive child welfare administrations had refused to
undertake the reforms they knew were required to protect the health and welfare of
Mississippi’s most vulnerable children. The final settlement agreement and reform
plan approved by the court on January 4, 2008 mandates top-to-bottom rebuilding of
Mississippi’s child welfare system and requires the State to meet its constitutional
and statutory obligations to serve and protect the abused and neglected children of
Serious problems with the foster care system in Mississippi at the time of
• Children were routinely placed in emergency shelters and other temporary
holding facilities for months at a time because the State had nowhere else to
• Caseworkers were overburdened and poorly trained, with high caseloads that
prevented them from adequately supervising the children in their care or
investigating reports of abuse and neglect.
• After determining that children have been abused and neglect, DFCS often
refused to open a case or provide services, and instead left the children in
harmful environments, or diverted the children to relatives who may have
been inappropriate or unable to provide care without support from DFCS.
• Children experienced extended stays in state custody with little effort being
made by DFCS to provide needed reunification services or to develop
appropriate adoptive homes for them.
• Instead of placing children in family-like settings, the state routinely placed
children as young as toddlers in large group facilities, often more than 50
miles away from their homes. Some of these institutions were unlicensed and
therefore did not have to comply with many state or federal requirements for
staffing, training, corporal punishment, or planning for children’s futures.
Vital statistics on the foster care system in Mississippi:
• Number of children in foster care: Approximately 3,183 as of June 1, 2005.
• Failure to meet all national norms: Social workers in Mississippi have
some of the highest caseloads Children’s Rights has seen across the country.
During the course of litigation, Children’s Rights learned that the statewide
average caseload per worker was 48 children, a level DFCS itself has
characterized as “BEYOND DANGER!” In some counties, caseloads were found
to exceed 100 children per worker.
• Failure to investigate reports of abuse and neglect: Because of the high
caseloads, DFCS admits it is only able to investigate the most severe cases of
abuse. This problem is long-standing. At the time of filing, 12% of children in
MDHS custody had at least one incident of suspected maltreatment in their
foster care placement that was not investigated. The backlog of investigations
at the time of litigation was nearly 3,000 and the average initial response
time was over 76 hours.
• Failure to open cases on confirmed cases of abuse and neglect: DFCS
admitted to the federal government that in 2002, the agency opened cases
and provided services for only 47% of the cases in which they confirmed a
child had been abused or neglected. Thus, DFCS left more than half of the
children it found to be maltreated with no oversight or services to ensure
their safety, a trend that continued as of the date the suit was filed.
• Maltreatment in foster care: In 2005, the rate of substantiated abuse and
neglect of children while in DFCS foster care custody was over five times the
allowable federal standard.
• Medical and mental health care: At the time of filing, DFCS was unable to
determine how many children had even received a health screening and
lacked medical histories on many of the children in custody. According to a
review by Plaintiffs’ expert, MDHS failed to provide 84.1% of children with a
physical examination within 7 days of placement as required. In 89.4% of
reviewed cases, MDHS also failed to make the children’s health records
readily available to assigned caregivers. Without medical history, DFCS could
not ensure that children were receiving needed services. Children were often
placed in foster homes or institutions without medical or mental health
histories, Medicaid cards, or refills of critical prescriptions. There was a severe
shortage of dentists and mental health providers who serve children in foster
• Length of time to adoption: A review by Plaintiffs’ expert reported that
26.2% of children legally freed for adoption languished for another 3 years or
more in MDHS custody, some in custody up to 11 years since adoption
became a permanency option for them.
• Over-reliance on institutional placements: As of June 1, 2005, 20.2% of
children who entered foster care were placed in a group home or facility,
rather than a foster home.
Named plaintiffs in the case at the time of filing:
Olivia Y. was removed from her home at age 3, weighing only 22 pounds, which is
the normal weight of a child less than half of her age. She had been severely
neglected and malnourished by her mother, but DFCS described the sickly and frail
little girl as “quiet,” “cute,” and “petite.” After entering care in September 2003,
Olivia was moved through five separate placements, including a relative’s home
where a convicted rapist also lived. When then placed in a shelter, staff there
reported that she was malnourished and depressed, and suffering from extremely
small stature, low weight, abnormal facial features and severe cradle cap, among
other things. Although Olivia was later moved to a foster home, apparent
developmental delays were not addressed, and DFCS failed to provide her with
needed medical and therapeutic services. Following the filing of the lawsuit by
Children’s Rights, Olivia has since been adopted by a family.
Jamison J. spent his childhood in DFCS custody. He and his sisters were removed
from their abusive mother when he was only 4 years old. He lived in a loving foster
home for five years where the parents hoped to adopt him. Instead, DFCS sent him
back to his abusive mother in a home where he witnessed months of abuse of a twoyear-
old child by an unrelated adult living in the home, culminating later in the fatal
beating of the child. Jamison then cycled through a series of institutions throughout
the state. At one point, DFCS sent Jamison out-of-state to live with his father who
had served over a decade in prison for violent crimes, and who Jamison had not seen
in over 15 years. When Jamison was forced to return to Mississippi, DFCS forgot to
pick him up at the airport. Because DFCS had no other place for Jamison to live,
Jamison was sent to a group home on the campus of the infamous Oakley Training
School and was told he had to get a GED instead of attending regular school.
Jamison is bright and wanted to finish high school and attend a four-year college.
Thanks to the pressure of the lawsuit, Jamison was moved to a highly-regarded
group home where he graduated from high school. He is now serving in the U.S.
John A. entered foster care at age nine suffering from mental illness. At the time of
filing, John had been moved more than 35 times and had not received consistent
mental health treatment. He had been institutionalized over 13 times, and was sent
twice to Memphis institutions because there were no available placements in
Mississippi. During one year, John was bounced in and out of foster homes six times
in less than three months. He also has been cycled on and off a variety of
medication, at one point being kept on six different drugs. In 2005, John had to sit in
the DFCS office day after day, kept out of school, waiting until someone would agree
to care for him. John has been freed for adoption, but DFCS has taken few steps to
provide John with a permanent home. Currently, John is residing in a group home
Cody B. was removed from his parents and placed in a shelter by DFCS when he
was two months old. When he was finally placed with a foster mother, she was never
told that Cody suffered from severe asthma. DFCS allowed Cody to be routinely
exposed to cigarette smoke during supervised visits with his biological parents,
exacerbating his asthma. After DFCS allowed an unauthorized overnight stay with his
biological parents, Cody had to be hospitalized for a severe asthma attack. When the
foster mother expressed frustration with DFCS’ failure to take necessary and
required steps to protect Cody’s well-being, DFCS removed Cody from this home, the
only one he had ever known, and placed him in a shelter. His next foster parents
were not told of Cody’s medical condition, and Cody again required hospitalization.
After being released from the hospital, DFCS returned him to the shelter, and then
placed him in yet another temporary foster home. This rapid succession of
unnecessary moves was extremely traumatic for Cody and jeopardized his health.
Following the filing of the lawsuit by Children’s Rights, Cody has since been adopted.
The W. children, Mary, Tom, Matthew, and Dana. DFCS placed these siblings in
a Hinds County shelter for six weeks in 2000 because their drug-abusing mother was
neglecting them and their father was incarcerated. The children all suffer from
documented behavioral and mental health problems. At age 8, Tom was hospitalized
because he wanted to kill himself. At age 11, Mary also threatened suicide, and was
admitted to a psychiatric hospital. Their aunt and uncle became their foster parents,
but when DFCS received a report that the aunt was allegedly exaggerating the
children’s needs, DFCS removed the children from her care without any prior notice
or investigation. After investigation, the claim was determined completely
unfounded, yet DFCS refused to return the children to their aunt and uncle who
wanted to adopt the children. Separated for the first time in their lives, the children,
who were legally free for adoption, were placed with three different foster families
who were not interested in adopting them. Mary, Matthew and Dana have since been
adopted, and Tom is currently living with a foster family.
Brief history of the case:
2001: Children’s Rights began investigating Mississippi’s child welfare system at the
request of local advocates.
March 30, 2004: Children’s Rights and co-counsel filed the Olivia Y. complaint in
federal court in Jackson, MS, on behalf of six named plaintiff children and two
statewide classes of children: (1) those in foster care custody, and (2) those not in
custody but known to the system because of reports of abuse or neglect.
May 17, 2004: Amended Complaint was filed on behalf of an additional seven
named plaintiff children.
November 18, 2004: The Court denied the State’s motion to dismiss as to the
Constitutional substantive due process claims of the children in State custody. Full
discovery began. Trial was set for February 2006.
March 11, 2005: The Court certified as a class all children in DHS custody.
September 8, 2005: Magistrate Judge Nichols granted Defendants’ motion for a
stay of litigation for 45 days while DHS dealt with the devastation wrought in the
southern part of the state of Mississippi by Hurricane Katrina, later extended through
January 1, 2006. Trial was reset for August 2006.
February 7, 2006: Plaintiffs submitted five expert reports detailing system failures
and the resulting harm to children.
March 31, 2006: Defendants submitted Child Welfare League of America (CWLA)
expert report corroborating chronic system failures
May 1, 2006: Both sides submitted motions for summary judgment arguing that the
available evidence justified a legal ruling without a trial. Trial was postponed pending
the Court’s decision on motions.
August 29, 2006: Court denied both parties’ motions for summary judgment.
November 13, 2006: Court set a trial date of May 7, 2007.
March 28, 2007: Parties signed Stipulated Settlement Agreement in which the
defendants agreed to no longer contest that the State was violating the substantive
due process rights of the Plaintiff foster children.
May 3, 2007: A mediator was appointed to facilitate the development of a remedial
plan to address systemic deficiencies within DFCS, as required under the Stipulated
May 17, 2007: Stipulated settlement agreement was officially approved by the
presiding federal judge at a fairness hearing.
November 7, 2007: Parties agreed to the Mississippi Settlement Agreement and
Reform Plan, which mandates top-to-bottom reform of Mississippi’s child welfare
January 4, 2008: Settlement Agreement and Reform Plan were approved by the
presiding judge at a fairness hearing.
June 4, 2008: The parties reached agreements on the services and plans to be
provided to the named plaintiffs of the lawsuit who remain in foster care custody.
October 21, 2008: The Court-appointed Monitor issued a Preliminary Status Report,
outlining her monitoring activities and her assessment of defendants’ progress in
hiring new leadership and implementing the Settlement Agreement.