On January 12, 2015, eleven named minor children in the legal custody of the South Carolina Department of Social Services ("SCDSS") filed this putative class action lawsuit (by their Next Friends) against the Governor of South Carolina and SCDSS in the United States District Court for the District of South Carolina. The named plaintiffs were represented by two advocacy organizations, Children's Rights and Appleseed, and by private counsel. Plaintiffs intended to seek certification of a class of all children who are or will be involuntarily placed in foster care in the legal custody of SCDSS as a result of emergency protective custody and/or a referral, report, suspicion, allegation and/or adjudication of abuse or neglect. Plaintiffs asserted claims under 42 U.S.C. § 1983, alleging systemic deficiencies in the operation of SCDSS subjected children in the state's care to harm or an unreasonable risk of harm.

The alleged problems included: whether SCDSS maintains an adequate number and kind of foster homes, resulting in over-institutionalization of foster children, repeated movement of children between placements, and deprivation of meaningful familial contacts; whether SCDSS has excessive caseworker caseloads, resulting in a workforce that cannot monitor children's safety, maltreatment in SCDSS care, and failure to investigate maltreatment; and whether SCDSS fails to provide initial and periodic medical, dental, and mental health assessments, treatments, and screens, leading to emotional and psychological deterioration of children in SCDSS custody.

On March 16, 2015, Defendants moved to dismiss for failure to state a claim. On March 30, 2015, with Defendants' motion pending, the District Court (Judge Richard M. Gergel) entered a text order asking the parties to engage in early mediation. The Court indicated that Senior District Judge Michael Duffy had agreed to mediate, should the parties consent. Later that week, the parties indicated that they were willing to engage in early mediation.

On September 28, 2015, the parties entered into an interim settlement agreement. As part of the "Consent Immediate Interim Relief Order," the plaintiff class was certified and "limited co-monitors" were appointed. SCDSS also agreed to undertake several remedial steps, including phasing out use of SCDSS offices, hotels and motels as placements and no longer recommending that children remain in juvenile detention because of a lack of foster homes. SCDSS also agreed to undertake a workload study, adopt workload limits, conduct a placement needs assessment, and create a plan to end the placement of children ages six and under in non-family group placements.

Judge Gergel approved the parties' final class action settlement agreement on October 4, 2016. The agreement defined the class as "all children who are involuntarily placed in DSS foster care in the physical or legal custody of DSS either now or in the future." Pursuant to the agreement, the court appointed two co-monitors to issue periodic public reports on the parties' compliance with the settlement agreement. SCDSS agreed to (1) complete a foster care workload study and adopt workload limits; (2) ensure that worker-child visitation happens with appropriate frequency; (3) adopt enhanced investigation procedures; (4) adopt procedures to ensure appropriate child placement; (5) provide for family visitation; and (6) develop a health care improvement plan. The settlement agreement was to remain in effect until the Court issues an order dismissing its jurisdiction over the action. Regarding attorneys' fees, the parties agreed to submit the amount and terms of fees and expenses to final and binding arbitration by the mediator (District Judge P. Michael Duffy).

In their most recent report from September 2018, the co-monitors outlined several areas of accomplishment: leadership changes and internal restructuring; development of a five-year budget; building infrastructure to meet children's healthcare needs; conducting a data audit; and development of a training plan and case practice model. The co-monitors also identified several areas in need of focus and improvement. One of these areas is investigative practice within SCDSS’s Out-of-Home Abuse and Neglect (OHAN) unit. The co-monitors noted that a lack of resources means that staff have excessive case loads and do not have the time, direction, or tools to complete their work. Another area in need of improvement is SCDSS's placement array and processes. While SCDSS made some progress in reducing the number of children placed in congregate care and staying overnight at SCDSS offices, there had been little improvement in the period leading up to the September 2018 report. Finally, the co-monitors noted a need for improvement in the area of workforce recruitment and retention.

In response to the September report, the plaintiffs filed a motion to hold the defendants in contempt for non-compliance with the settlement agreement on November 26, 2018. On December 5, 2018, the Court issued an order stating that, starting in January 2019, the Court will hold monthly status conferences to assess SCDSS's implementation of the reforms mandated by the settlement agreement. Prior to the first status conference, SCDSS must submit plans about the three main areas in need of reform: workloads, placement, and healthcare. The order also required that SCDSS appoint staff responsible for those three areas. Finally, the order required that the parties conduct a mediation session prior to the January status conference.

The parties participated in mediation, and the monitoring arrangement continued with monthly status conferences. On August 15, 2019, the court issued an order clearly stating that the settlement agreement requires defendants to have reached a set of benchmarks by July 1, 2020 that they had yet to achieve. The other further states that the expectation remains that they will meet these benchmarks.

As of May 22, 2020, the most recent biannual monitors' report was filed on March 2, 2020. The report details only moderate success, noting that budget restrictions created significant limitations to compliance. Monitoring of the settlement is ongoing.

Dan Whitman - 10/22/2015
Eva Richardson - 12/26/2018
Alex Moody - 05/22/2020


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