Marcia's Law

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Years before children's rights attorney Marcia Robinson Lowry became a professional hell-raiser taking on child welfare systems across the country, she drew a check from the one in New York City.

In 1972, she was attempting to be part of the solution in the Bureau of Child Welfare, known today as the Administration for Children's Services (ACS). As an assistant to the commissioner, she helped the agency strategize how to handle high-profile cases and developed new programs for older kids who were faring poorly in foster care.

Problem was, her ideas all too often ended up shelved when they proved to be impolitic. Her favorite plan–and one she admits she “totally bombed out on”–was to build a group home for teen truants a block from a high school on King Street in Greenwich Village. When students went AWOL, teachers could just stop by the home and retrieve their charges. “It was just a great idea,” she says, still wistful that the plan was killed after Village residents protested. “They didn't want those kids in their neighborhood, and that was the end of it.”

Had the school been built, it would have met Lowry's ideal of child welfare: a powerful government entity that serves as neither jail guard nor absentee parent, but as a benign caretaker, with a staff of social workers to keep an eye on things.

Lowry left that job, deciding she could do better for kids on her own. Since then she has invented an entirely new kind of law with one single purpose: to turn child welfare from a bureaucratic disaster into a system truly focused on children. First as director of the Children's Rights Project of the New York Civil Liberties Union, then the ACLU, and later, starting in 1995, as head of a seven-attorney firm called Children's Rights, Inc., she has pursued that quixotic dream for the last 30 years, bending child welfare systems nationwide to her will in the process.

To this day, Lowry thinks child welfare as we know it is an abysmal failure. She charges, correctly, that children are routinely left at home when they're in danger, sent to foster care when they're safe at home, and mistreated once they're in foster care. Yet just as she remains certain that King Street should have had its group home, Lowry steadfastly believes that child welfare can make children's lives better–it just hasn't yet, ever. For Lowry, foster care cannot be reformed piecemeal, with lawsuits that chip away at problems. It must be completely rebuilt–and through relentless litigation, Lowry has anointed herself to do it.

In all, she has forced a dozen cities and states into court, charging that their child welfare systems fail to serve children. Her battlefields have ranged from states with few kids in foster care, such as Wisconsin and Kentucky, to Philadelphia and New York, where even years of other people's best efforts had failed to turn around entrenched cultures of failure. In 1995, she convinced a judge in Washington, D.C., to appoint an independent overseer to take over that city's entire child welfare agency. This summer, she filed a suit in New Jersey and she says, cryptically, that she has at least one other major suit in development.

But Lowry has become famous for what she did in New York. Last year she settled her blockbuster federal case Marisol A. v. Giuliani, filed in 1996 when New York City was still shaken by the death of Elisa Izquierdo, a 6-year-old killed by her mother. Lowry originally asked a federal court to put the city's entire child welfare system into receivership. The incendiary suit was a Molotov cocktail toast to New York's child welfare bureaucracy.

In a child advocacy world long torn between proponents for removing children from problem homes and those promoting foster care as a last resort for only the most extreme cases, Lowry's ferocious efforts have generated respect on all sides. “I don't know anyone who's worked for poor children quite as doggedly as Marcia has over the years,” offers Margaret Ayers, a director of the Robert Sterling Clark Foundation, which granted $145,000 to Children's Rights in 1998 alone.

“She's brought an enormous amount of attention to these issues,” says Richard Wexler, director of the National Coalition for Child Protection Reform, a group dedicated to keeping children out of foster care. “Whatever else, these lawsuits shed a light on a very dark corner.”

But for all her legal opinions about what's wrong, it's unclear whether these lawsuits have made her targets substantially more responsive to children's needs. Three decades after her first lawsuit against New York, Lowry concedes that she does not know what will actually work to improve the sad circumstances of the children she represents. She's not even sure if the deal she worked out with city lawyers on Marisol, the culmination of years of work and millions of dollars in bills to be paid by the city, will result in improvements for kids.

Yet even after years of raising hell, watching foster care bureaucrats scramble to comply to her orders, and waiting, and waiting, for results, Lowry's faith that child welfare will eventually work seems bottomless. A 1996 New York Times article about Lowry reported that when the ACLU threw her a 20th anniversary party, she told a roomful of guests that she was a failure for not having fixed New York's system. Lowry now says that the reporter got it wrong–she wants it known that she told the guests it was premature to congratulate her. So what did she say? For the record: “I haven't fixed it yet.”


“The individual stories can be devastating,” says the 58-year-old Lowry, with the same cool intensity that she brings to her exhaustive depositions and court arguments. “When I read Marisol's case record, I start to cry.” Lowry's emotional outpourings on behalf of abused and neglected children at first seem out of sync with her prickly personality, but the overall effect is a convincing fierceness. Neither eager to please nor especially interested whether other advocates agree with her methods, Lowry pursues her cause singlemindedly, not caring who she alienates along the way.

She's got other priorities. Seven-year-old Marisol A. was burned, beaten, starved and locked in a closet after being returned to her mother from a foster mother who wanted to adopt her. Where even the steeliest children's advocates end up slipping into hopelessness after seeing case after case like that one, Lowry sees opportunity. “If I know that I'm going to do something that's going to keep this from happening again, then obviously that energizes me,” she explains.

Lowry was energized enough to file a class-action lawsuit that was gargantuan even by advocacy lawyer standards. Besides Marisol herself, Marisol v. Giuliani was filed on behalf of all 40,000 children in New York's foster care system and every child whose parents were merely suspected of abuse or neglect–100,000 children in all.

Lowry's lawsuits spell out in horrific detail the abuse and neglect suffered by children, both at the hands of their own parents and under the watch of incompetent child welfare systems. Throughout the country, the children's stories are chillingly similar. In the New Jersey case, Charlie and Nadine H. v. Whitman, Charlie and Nadine were taken from a mother who tried to drown the girl, then put in the hands of a mentally ill family friend and her alcoholic boyfriend, a convicted pedophile, both of whom seriously abused them.

“The issues they're raising are compelling and representative of continuing problems,” says Cecelia Zalkind, director of the New Jersey advocacy group Association for Children. She notes that New Jersey is already working on its own child welfare reform plan, and worries that time-consuming litigation will divert the state agency's energies right when it needs them internally.

“We're trying” is a phrase heard often from child welfare agencies under assault. New York, too, is being revamped under a reform plan by ACS Commissioner Nicholas Scoppetta, a former foster child who grew up to be a federal prosecutor and friend of Mayor Rudolph Giuliani. ACS's own reform efforts, launched in 1996, focus on overhauling an ineffective bureaucracy and moving child welfare services from downtown offices into the neighborhoods where children live. It also promotes a zero-tolerance approach to reports of child abuse and neglect, which led to an alarming 50 percent increase in the number of children removed from their homes in just two years.

Up against agencies in perpetual chaos, Lowry believes that only legal advocates can make foster care accountable to kids. “I haven't had any system that has had sustained reform without litigation,” she insists. “Litigation is unfortunately necessary in most of these systems, to shove them into compliance with the law.”

Within four months of arriving at the ACLU in 1973, Lowry had already started pushing New York City, and in the process she learned a powerful lesson in getting mileage out of lawsuits. With Wilder v. Sugarman, she charged that the private agencies that took in foster children discriminated against them based on race and religion. The agreement she reached with city lawyers in Wilder was supposed to end racial bias in child welfare.

Almost accidentally, the settlement accomplished more: For the first time, court-imposed mandates detailed everything the child welfare system had to do when children entered its care. For instance, the city agreed that every child would receive a comprehensive evaluation. This measure had the hidden advantage of allowing children to be screened for services like counseling.

But the numerous mandates put on the city, mostly geared to finding the most appropriate placement for each child, never worked in the ways they were supposed to. Too many caseworkers had to implement regulations that they never quite understood, making Wilder another layer of bureaucracy instead of a meaningful blueprint.

Still, Lowry saw that child welfare systems could be made to budge–and if they could move a little, she reasoned, they could move a lot. In the process she created lots of precedents that other child welfare advocates use to bolster their cases today. Remarks Ira Burnim, who successfully sued to overhaul Alabama's child welfare system with the Bazelon Center for Mental Health Law, “Marcia created all the tools for litigation. She did all the early work. She pioneered it.”


Marcia Lowry didn't always think so big. When she enrolled at NYU Law School in 1966, she had a commitment to social justice but no idea that child welfare was her future. She started out at Community Action for Legal Services, where she pushed to legalize abortion. Then, after her stint with the city, Lowry went to the ACLU to head up its brand–new Children's Rights Project.

In those early days, Lowry did what most other public interest lawyers do: file suits to remedy specific problems in public institutions. For example, in 1970 she sued New York for its practice of warehousing children with emotional problems in mental hospitals, and she won. But in what she has since called “an unforeseen and undesirable outcome,” the city began shipping hundreds of children to out-of-state institutions instead.

Similarly, in New Mexico, Lowry sued to force the state to make sure kids languishing in foster care got adopted, and in 1983 a court ordered the state to beef up its adoption efforts in specific ways. State officials politely complied. But Lowry later discovered that they had managed to do that by taking staff away from other parts of the system. “These systems can't walk and chew gum at the same time,” she complains.

Lowry eventually concluded that with decaying bureaucracies like these, only a complete housecleaning will do the job. “You can't reform a piece of the system,” she says. “If you focus on one part, another part goes down the tubes.”

In a 1986 law journal article that doubles as a manifesto for her children's crusade, Lowry considered each of the ways attorneys try to get child welfare to change. Narrow constitutional challenges and suits for damages, she argued, have only fleeting effects and leave fundamental problems unaddressed. She insisted that only sweeping class action litigation–“big bites,” she called them–could have lasting consequences.

Lowry cited examples from her own case files. In Kentucky in 1978, for instance, the ACLU sued Louisville's child welfare system for neglect of children languishing in foster care. Lowry hit the jackpot there, getting a court decree outlining procedures, monitoring, and other steps to be taken to make sure kids get adopted.

Big bites, though, sometimes meant swallowing unintended results. In 1993, Marcia Lowry tried to hold New York City in contempt for refusing to follow the Wilder settlement in certain cases. Among other things, caseworkers were not pre-screening kids entering “kinship care,” in which children are placed in foster care with relatives instead of strangers. Responding to her complaint, a judge ordered that the city evaluate children going into kinship care, too. Other children's advocates, including Lawyers for Children and Legal Aid's Juvenile Rights Division, filed objections, fearing that extra burdens on city caseworkers would make kinship care an unattractive option. Their concerns were proven right, as kinship placements declined by one-third in the years following the judge's decision.

Lowry attributes the kinship slump not to her actions but to bureaucratic bungling. “The city has often applied very reasonable rules in very perplexing ways,” she says. “They are capable of misapplying almost anything.”

As unpredictable as it is impossible to escape, Lowry's law has led to some concrete results. Children's Rights materials boast of “faster investigation of abuse and neglect in Kansas and Washington” and “regular and timely case planning conferences in Kansas.” Adoptions, it reports, have accelerated in Philadelphia, Washington and Kansas City. Lowry even claims responsibility for getting seven state legislatures to spend a total of $300 million more on child welfare. “Litigation creates political will,” she shrugs, as confidently as saying July follows June.

Lowry's determination to raise a ruckus also shakes up institutions without providing a blueprint for piecing them back together. Doug Nelson–the head of the panel advising ACS under the Marisol settlement and a longtime Lowry supporter–is concerned about consequences. “She, like lots of other advocates, sees her role as calling attention to problems, creating a heightened sense of urgency,” he observes. He's not sure if he agrees with her. “I've never been fully convinced that crying fire in a theater, even if there's smoke, leads to everybody's safety.”

As she proceeds on her cross-country tour, Lowry's showdowns with child welfare authorities have only gotten rockier. In Kansas, she won a consent decree in 1993 in which the state promised many improvements, such as pledges to investigate reports of suspected abuse and to speed up case planning. But a 1997 audit found the state in compliance with only 10 percent of the decree's requirements (a figure that has since improved).

In 1991, she won an astounding court order declaring the entire child welfare system of Washington, D.C., unlawful, after a trial lasting just two weeks. The decision marked the first time in U.S. history that an entire bureaucracy was found unconstitutional. The city signed an agreement promising far-reaching improvements, including a 24-hour abuse hotline, twice-monthly caseworker visits to foster homes, and planning meetings to make sure children don't languish in foster care.

But by 1995, there had been no noticeable improvements for the city's roughly 2,500 foster children. Lowry went back to court and convinced the judge to order the entire child welfare system into receivership. Lowry says that progress has been made, with staff tripled and a budget increase of $32 million in the last three years.

Fifteen times larger than Washington's, New York City's child welfare situation is that much messier. Pretend for a moment that the laws governing ACS reflected reality. Caseworkers would make all reasonable efforts to keep children home with their parents, removing them only when they're in real danger. Children in foster care would be in nurturing homes where their physical and psychological needs are met. ACS would help parents do whatever is necessary to resume care of their children. And should that prove impossible, ACS would ensure that the children are adopted.

That too rarely happens. Three years of vitriolic badly the city had failed children. In 1997, Children's Rights released three reports that had been prepared by a panel of experts, one of which was so embarrassing that the city unsuccessfully tried to block its release. The panel discovered staggering deficiencies. Caseworkers failed to meet with children and parents twice a month, as required by state law, 97 percent of the time. There was new abuse or neglect in 43 percent of the homes that ACS was supposed to be monitoring. One-quarter of children in foster care were not receiving adequate medical, dental or psychological treatment, including almost half of those in group homes.

Yet despite the damning evidence amassed for trial, Lowry and the city hashed out a resolution in September 1998 rather than go to the mat in court. Under the settlement agreement, the city would allow a panel of experts to review ACS records and make recommendations for two years. Lowry also agreed that during that time no class-action suits could be filed against the agency–by anyone.

“The panel is recommending changes that are more far-reaching than a judge could order,” she says in defense of the settlement. “If they're implemented, that would have a more far-reaching effect than anything I could get.” Yet Lowry acknowledges that there's no certainty that “if they're implemented” will ever turn into “when they're implemented.”

Under the agreement, city Corporation Counsel Michael Hess was careful to hold ACS to no direct obligations. The panel is “purely advisory,” reads the agreement, “intended to assist ACS in achieving the reform goals it has set.” ACS is obligated to make only a “good faith” effort to address the panel's recommendations; if it does not, the panel can recommend that Lowry bring the case back to court. But even if that happens, it may be difficult to prove bad faith on ACS's part: as long as ACS shows some indication that it considered the panel's proposals, it's legally off the hook. At the time, Hess described the deal as “very comforting” to the city.

Well aware of the arrangement, panel chair Doug Nelson shares Lowry's uncertainty that his team's work will result in serious improvements. So far, they have issued three reports, in which a call for better preventive services is the most ambitious recommendation. “The mid-course judgment is that a great deal has been done, and a great deal appears ready to be done. But it is not clear to me that enough can be done to satisfy everybody's reasonable expectations for improvement,” says Nelson. “Marcia Lowry might walk away in eight months and say it was a mistake.”

Other family advocates are already saying it was a mistake. Douglas Lasdon, director of the Urban Justice Center, is livid about the looseness of the agreement. “In this settlement, the devil is in the details,” says Lasdon. He insists that the deal leaves ACS with so many outs that there is little chance the panel will have an impact. And he's even angrier that it shields the city from other lawsuits. “For the first time in our country, an entire bureaucracy is free for class-action lawsuits for two years,” he says. “It's unprecedented.”

In agreeing to the two-year moratorium, Lowry might as well have dumped all of her Marisol briefs on Lasdon's toes. This January, Lasdon unsuccessfully tried to bring suit on behalf of lesbian and gay teens in foster care–the moratorium, a judge ruled, preempted it. Lasdon, who had spent a year preparing his suit, blames Lowry for derailing his case. “Frankly, we don't see what they're getting,” he says, referring to Children's Rights.

He's also upset that city has agreed to reimburse Children's Rights for fees that will add up to the millions. Fees are a standard part of the winning side's package in lawsuits like this, but Lasdon doesn't believe Children's Rights has earned them. “The kids have gotten nothing,” he fumes. Lowry insists that the settlement is a victory for children, and that the prospect of getting fees back has never influenced her decisions to make agreements. “In my view there's only one thing that you can do and that's get the best deal for your client,” says Lowry. “If you have to eat your fees, then you have to eat the fees.”

Lasdon is the loudest in a chorus of resentment over Lowry's preemptive strike. Legal Aid, which represents most children in foster care, filed court papers that backed the idea of the panel but protested that two years is too long not to be able to sue.

At the time of the settlement, Lowry assured other attorneys that cases clearly out of Marisol's range wouldn't be affected. But advocates' fear of a blockade is already being realized. One group of parents, represented by Brooklyn Legal Services, sued the city in March to force caseworkers to include them in planning their cases, as state law requires. But in September, a state court judge dismissed the suit, saying that only the Marisol panel had the authority to deal with casework problems.

Legal Services lawyer Lauren Shapiro thinks the judge misread Marisol, and she plans to appeal. City lawyers, she notes, had asked the judge to delay the case until after the Marisol panel had completed its work. No one told him to kill it entirely.


Lowry admits that even after all this time she doesn't know what will work best for children. “Liability is easy,” she remarks–it's coming up with a settlement that benefits children that's the real trick. She says she is still searching for the lawsuit that will, once and for all, transform child welfare from a bureaucratic backwater into a safe haven for troubled kids. She recently scored a grant from the Edna McConnell Clark Foundation, which she's using to explore whether she can bring a case even more comprehensive than Marisol. Her plans are still embryonic, but she says she is trying to figure out how to bring the juvenile justice and mental health systems into her suits.

Her plan might sound wildly ambitious, even by Marcia Lowry standards. But she's right that all those problems are inextricably intertwined. Abused and neglected children are much more likely than others to develop mental health problems, stop attending school, become teenage parents or get arrested.

To this day, the civil libertarians she used to work with are still upset that Lowry won't focus on preventing kids from entering foster care in the first place. But Lowry says that's not her department–she just wants to make sure that when children need a refuge, they'll have places to go. Lowry proclaims–yes, proclaims–“It's got to be fixable.”

Wendy Davis is a reporter for the New Jersey Law Journal.

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