Despite a caseworker’s lawsuit against the Indiana Department of Child Services, her employer says she’s right: There aren’t enough caseworkers to handle the exploding growth in cases of Indiana children and families in crisis. But that’s where the agreement ends.
“The fact is, we want a remedy. We want a remedy at law,” deputy attorney general Frances Barrow told a panel of the Indiana Court of Appeals on July 20. She defended a trial court’s dismissal of caseworker Mary Price’s suit seeking to enforce state law setting the maximum number of cases at 17 per caseworker. Price was handling 43 when she sued.
“Then why aren’t you sitting on that side with them?” Judge Margret Robb quipped to Barrow, nodding to Price’s counsel’s table.
Barrow said the agency can only work with what it’s given by the Legislature and the executive branch, and a court order to comply could mean slashing services.
Price is represented by the American Civil Liberties Union of Indiana and seeks a class action on behalf of more than 1,000 overburdened DCS caseworkers who Judge James Kirsch noted are asked to handle their cases on an average starting salary of about $35,000 a year.
ACLU of Indiana Legal Director Ken Falk argued the trial court erred in ruling Price had no private cause of action to sue. He told the court that even if she didn’t, the court could mandate that the agency comply with the law. He noted DCS agreed the trial court erred in saying Price could seek a remedy through DCS’ administrative appeals process.
“DCS has conceded in this appeal that that is not an adequate remedy because of the systemic nature of the relief that’s being sought, that is, an infusion of a large number of new case managers,” Falk said. “… It would be lovely if DCS would stand up and say, ‘We want to file something to force the Legislature to give us money.’ I don’t think that’s going to happen.”
Indiana Code § 31-25-2-5 establishes, “A child protection caseworker or a child welfare case manager may not be assigned work that exceeds” 17 children per caseworker.
“It’s mandatory as mandatory can be,” Falk told the court. “It’s uncontested they’re not in compliance. … We’re dealing here not with some aspirational goal or Utopian wish, we’re dealing with mandatory language.”
But Barrow urged the appellate panel to read the rule as “directory,” allowing DCS to comply with the statute to the extent possible.
“If it is in fact mandatory, then you do have a situation, the court indicated earlier, we do stop opening new cases,” she said. “Mary Price would be directed to close 26 of her cases to come down to her numbers. It would all be a matter of statistics. … That cannot have been the intent of the Legislature.”
This drew a challenge from Judge Patricia Riley. “Why couldn’t it have been, because they put a number on it,” she said. “How did they get to a number?” Riley also asked Barrow, “So what’s the magic number? We let [caseworkers] get to 60, 80, 100 cases?”
Barrow said she didn’t believe the Legislature intended DCS make numbers by taking actions not in the best interests of children, and she said the agency doesn’t have control over funding or the rising number of cases in recent years.
“There’s no real blame attached to the agency except you’re not in compliance,” Barrow said. “This is the conundrum.”
Falk brushed aside DCS’ concerns about its limited ability to enact changes to meet a court mandate. He also said Price wouldn’t be asking DCS to do anything immediately, but rather would force the agency to seek adequate funding for caseworkers as the law demands.
“We can go back to court, we can have our trial, and the court can say, ‘Look DCS, you shall comply with the statute on this date,’ not tomorrow, but a year from now,” Falk said. He added it would provide enough time to go back to the Legislature and “confront the people who wrote the statute.”
“An order recognizing that there has to be legislative input here, and giving everyone time would be perfectly appropriate and would be a perfectly valid mandate order — you must comply by this date,” he said.
Barrow said that while the agency has added about 100 case managers since the suit was filed in July 2015, more help is needed. “Even the appropriation of additional funds proves to be inadequate to the extent there’s no control anyone has over additional cases coming in,” she said.
As an example of the rising need for caseworkers, the number of child in need of services cases in 2014, the last fiscal year for which complete data was available, was 14,227. That’s a 44 percent increase from 9,865 cases in 2005, according to state court data.
Judges and child advocates say the problem has only worsened, with the state facing parental heroin, meth and prescription drug abuse at what some call epidemic levels.
“This is a case where the plaintiffs and defendants want the same thing,” Barrow said. “We want case workers to have reasonable caseloads.”
Nevertheless, she argued, “This is not a proper case for mandate, and it’s not a case where the Legislature has shown plaintiffs have a private right of action.”
Robb challenged Barrow on the argument that Price had no private remedy. She noted other laws restrict an employer from firing a worker who refuses to break the law. “What is the real remedy if DCS is never going to be able to comply? Get fired?” Robb asked, after which the terminated caseworker would have a cause of action.
Falk argued that while the statutory maximum of 17 cases per caseworker provides a public benefit of protecting children and families, it also provides a private benefit that gives Price a right of action.
“The injury to Miss Price is that Miss Price has a statute that says definitively she is to have no more than 17 cases,” he argued.
“The state does not concede the intent of the Legislature was to benefit caseworkers,” Barrow countered. “This is all about children and all about families.”
Kirsch challenged Falk on whether the Legislature couldn’t simply repeal the statute if DCS were ordered to comply. Here, Falk and Barrow also found an area of agreement: this wouldn’t be in the best interests of the state’s children.
“The Legislature reached this number because they recognized it was essential to protect Indiana’s children, and I would hope that the response to the fact that this needs some work … would not be to say, ‘Well, never mind, we’ll just let children go on as they were,” Falk said.
The case is Mary Price, et al. v. Indiana Department of Child Services, et al., 49A05-1602-PL-00380.•