Updated Nov. 15 with statement from the governor: Attorneys for Kansas Gov. Laura Kelly have asked a federal court to remove her from a class-action lawsuit over the state’s troubled foster care program, arguing that she doesn’t actually oversee the system.
The move comes as parents and advocates say that the system continues to traumatize the thousands of children in its care.
A year ago, child welfare advocates sued then-Gov. Jeff Colyer and the heads of the state agencies in charge of the foster care system: the Department for Children and Families, the Department of Aging and Disability Services and the Department of Health and Environment. In April 2019, Kelly and the current heads of those agencies replaced them as the defendants in the suit.
The lawsuit alleges that the state failed to provide adequate mental health treatment for Kansas foster children and traumatized them by moving them from house to house, sometimes more than 100 times. The suit was filed on behalf of 10 foster children, who were identified only by their initials.
On Oct. 25, Kelly’s attorneys filed a motion in the U.S. District Court of Kansas, arguing that the governor is protected under the 11th Amendment of the U.S. Constitution, which provides states protection from many lawsuits by private citizens.
Kelly is not responsible for regulating the state’s foster care agencies, the attorneys argued, and is therefore immune from being sued over this issue.
“While Governor Kelly generally oversees her appointees’ administration of the foster care system,” the motion reads, “she does not enforce the statutes or regulations that control the Kansas foster care system.”
Instead, Kelly’s lawyers argued, the heads of state agencies are responsible for overseeing social welfare, mental health, medical care and other duties laid out in state law.
In an email, the governor's office said Kelly would continue to work on improving foster care.
"Asking the court to dismiss a governor from lawsuits such as this is routine with the lawsuit already involves state agencies," the statement said. "The request ensures that the appropriate parties are engaged in the lawsuit."
Attorneys for the children suing the state have until Dec. 30 to respond.
Teresa Woody, an attorney for advocacy group Kansas Appleseed, said they plan to file a response opposing the removal of Kelly from the lawsuit.
“It's not at all uncommon to name the governor in a case like this,” Woody said. “The ultimate responsibility for the executive branch of the state rests with the governor.”
The judge will make the final decision to remove Kelly as a defendant, and it’s not clear when that might happen.
Woody said both sides of the case met Tuesday for mediation.
The governor has previously said she wants to prioritize fixing foster care during her time in office. While she was a state senator, Kelly served on a task force examining the foster care system.
This story was updated on Nov. 15, 2019 with a statement from Gov. Laura Kelly's office.
Nomin Ujiyediin reports on criminal justice and social welfare for the Kansas News Service. Follow her on Twitter @NominUJ or email nomin (at) kcur (dot) org.
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