What should anger us most about the life of Kimberly F., a 15-year-old Indiana girl in the custody of the state’s Department of Child Services? That she was repeatedly sexually abused by at least three men? That those responsible for her allowed the abuse to continue? That the state repeatedly kept her in the care of those who exposed her to harm? Or the fact that she’s now been in foster care for eight years?

Kimberly is one of several children named in a class-action complaint filed in August on behalf of Indiana’s foster children by Marcia Robinson Lowry — founder of A Better Childhood — and other attorneys. According to the complaint, Kimberly was first raped by her stepfather and then by her mother’s new boyfriend before DCS took custody of her. DCS placed Kimberly with her grandmother, despite safety concerns that prevented the grandmother from becoming a licensed foster parent.

In her grandmother’s care, Kimberly was sexually abused by a third man, the grandmother’s neighbor. Despite the fact that the grandmother continued granting the neighbor unsupervised contact with Kimberly after the sexual abuse was reported, and allegations that the grandmother was trafficking Kimberly, DCS returned Kimberly to the grandmother after a brief move to another foster home. After eight years of being let down by every adult in her life, Kimberly is likely to stay in care until adulthood, never having had a safe and permanent family.

The sickening details of this case and several others are chronicled in the complaint, which seeks to make the case that Indiana DCS requires federal oversight to ensure the rights of children who are or will be in foster care. Class action lawsuits are a common strategy to force child welfare agencies to make needed changes, like lowering caseloads, improving data collection and monitoring and holding them accountable for minimum standards of care.

These lawsuits focus on children in foster care because federal courts have held that individuals in state custody have affirmative rights. Thus, the typical lawsuit cites multiple inappropriate placements, long stays in foster care and inadequate mental health treatment, especially for children with more severe behavioral and mental health problems.

The utility of these lawsuits is disputed. States find them onerous and expensive, arguing that compliance activities and legal fees take time and resources that could be used to directly improve quality of care. Advocates counter that less aggressive efforts have failed to produce necessary changes.

Indiana’s lawsuit charges the state with “failure to keep children in foster care safe,” “failure to implement measures necessary to ensure permanency within a reasonable period of time,” and “failure to recruit and retain an adequate number of foster homes.” A recent report from the American Enterprise Institute comparing foster care permanency outcomes across the 50 states and DC confirms that Indiana DCS moves children out of foster care and into stable permanent arrangements less often and more slowly than other states. Indiana is less likely to terminate parental rights or pursue adoption for children who cannot be reunified, reunifies children after federal guidelines for permanency, and has an above-average rate of failed reunifications.

Interestingly, Indiana has reduced the number of children entering their foster care system by over 40% in just four years – from 12,826 in 2017 to 7,291 in 2021.

Although they likely credit their success to better prevention services, the number of recipients of prevention services also declined, from over 50,000 in 2017 to 40,399 in 2021.

Perhaps DCS believes that by serving fewer children, they can better serve the most severe cases. According to the lawsuit, however, that 40% decline in caseloads hasn’t helped children like Sophia find a permanent family. Federal guidelines under the Adoption and Safe Families Act requires filing for termination of parental rights — a prerequisite for adoption — after children have been in care for 15 months. But, once TPR occurs, there is an expectation that states pursue adoption.

Indiana DCS, faced with having to actually find permanent homes for the children they have allowed to be repeatedly violated and unprotected for several years, decided to comply with the technical requirement of ASFA without the hard work required to help abused children heal. In the case of Sophia, another child exposed to repeated sexual abuse who has spent year after year in foster care, DCS engaged in a practice called “file and dismiss,” filing a TPR at 10:23 am on Sept. 10, 2020, and then filing a motion to dismiss that petition at 11:02 am. The agency did the same thing on Sept. 9, 2022, stating that “while DCS believes all children are adoptable … DCS concedes that there is no set placement for Sophia … and that placement will be difficult to locate.”

Indiana DCS is perhaps right that there are only a small number of families who can take on the challenging responsibility of parenting a repeatedly traumatized child with severe behavioral issues. But that is hardly a defense given that DCS’s decisions — to keep children in foster care indefinitely, to leave or return children to unsafe situations, to not provide evidence-based therapeutic treatments to victimized children and to fail to equip foster parents with knowledge and skills needed to support those children – are a big part of why children like Kimberly and Sophia are “hard to place.”

Perhaps DCS acknowledges the reality that, if DCS simply declines to formally intervene, then children like Sophia and Kimberly are not DCS’s problem. There is no federal court that will punish them for not removing children, only for failing the children they do remove. And, given a growing chorus of parents’ rights activists seeking to abolish foster care entirely, it is in every way — legally, financially, and politically — easier to turn a blind eye than to meet the needs of our most vulnerable kids.