Suits against DHS “are hard cases to win”

]Whenever a child suffers and dies at the hands of adults, as Danieal Kelly apparently did, it might seem logical that someone sues the city's Department of Human Services on his or her behalf.

What's surprising is how few times that's actually occurred.

Kelly, 14, who had cerebral palsy, died in August 2006, suffering from severe malnutrition and bedsores. She had been in the protective care of DHS and a private contractor hired by the agency.

In the last 10 years, just 67 child-abuse lawsuits in which DHS was a party were filed, according to Craig Straw, chief deputy in charge of civil rights in the city's Law Department. (Child-abuse cases are typically filed as civil-rights cases.)

That's equal to around 10 percent of the police-brutality cases filed in the same 10-year period, and just a small fraction of the 1,656 total lawsuits filed against Philadelphia in fiscal year 2008 alone, city figures show.

Of the 67 child-abuse lawsuits between 1998 and 2008, 16 were settled with payouts totaling $2 million. Seven remain open, while 44 were dismissed without payment, Straw said.

Explaining the relative dearth of suits, Strawhe said, "These are hard cases to win." A plaintiff has to prove that DHS is accountable for abuse or a death caused by someone else, such as a parent or foster parent, he added.

An example is the 2003 Porchia Bennett case, in which the estate of a 3-year-old girl who died of multiple beatings, asphyxiation and malnutrition alleged in a lawsuit that a DHS worker failed to act on her behalf. The case was thrown out.

Another possible reason there are so few child-abuse cases, experts say, is that the victims are too young to sue and the perpetrators are often the parents. There was a firestorm in the Kelly case when the parents who are being blamed for her neglect initially filed suit.

Compared to the 67 child-abuse cases, there were 652 lawsuits alleging excessive force or assault and battery by police officers on citizens between 1998 and today, Straw said.

He did not have figures on which police cases were settled and/or thrown out, but he said that the city wound up paying $13.3 million to litigants.

The biggest settlement of a child civil-rights case in the last 10 years — a $1 million payout — came in 2006, according to Harvey Rice, first deputy city controller.

While under supervision of DHS, an 8-year-old girl known in court records as T.J. had been assaulted by convicted bank robber John Aloysius Lyles III, whom DHS had decided would make a good caregiver. T.J. contracted HIV after the assault.

In another case, the city settled with the aunt of a girl known as M.B. in 2003 for $500,000, Rice said.

In 1995, court records show, M.B., then 4, was raped by a man living in the home of a foster mother working for Women's Christian Alliance, a North Philadelphia organization that ran foster homes. The alliance received children placed through a contract with DHS.

The aunt was awarded an additional $2.8 million in a federal suit against the alliance, records show.

In 1999, the godparents of a 3-year-old boy who had been found naked and battered with a broken leg in the basement of his Port Richmond house were awarded $275,000, according to Rice. The boy's mother, Andrian Huymaier, was sentenced to 15 to 34 years for abusing him.

Asked this week whether the award has made a difference for the boy, his attorney, Patricia Hoban, said, "Children can never be fully compensated for injuries inflicted by adults."

Hoban, a personal injury lawyer in Center City, added, "A child's innocence is taken, and then you throw some dollars at him and say, 'Here, this is to make up for all the shortcomings.'"

In cases like these, Hoban said, an attorney has to show that DHS didn't follow normal procedures on a regular basis.

Center City trial lawyer Leonard Fodera, who represented the aunt in the M.B. case, agreed.

"You can't go forward with the rogue-employee theory — that one person at DHS was acting outside the norm. You have to show that malfeasance was widely known and ignored."

There were other significant lawsuits involving DHS filed prior to 1998.

In 1993, DHS paid $1.6 million to the estates of four foster children who died in 1989 in a fire in the home of the foster parents, Rose and Hubert Artis. The foster parents also paid $1.6 million. Lawyers for the city settled the suit after determining that DHS had not followed its own regulations for foster home inspections in 1989.

In 1990, the American Civil Liberties Union filed a class-action suit against DHS alleging that abused and neglected children were systematically denied their civil rights.

The suit was brought on behalf of several children, including one known as Baby Neal, an infant who was born in 1990 with syphilis and with cocaine in his system.

DHS promised to make specified improvements and undergo two years of monitoring by private advocates.

Whether those lawsuits ultimately make a difference in the way DHS operates is not easy to answer.

Frank Cervone, executive director of Support Center for Child Advocates, a program of volunteer lawyers working for abused children, was an attorney on the Baby Neal case.

"We tried to fix neglect in a DHS system which is designed to remedy neglect of family and parents," Cervone said.

"In 1990, DHS literally didn't know where the kids they were supposed to be caring for were, and their case loads were dramatically high."

As a result of the lawsuit, he said, caseloads were reduced and DHS workers were better trained.

But, Cervone added, lawsuits also tend to make an agency defensive, which can hinder efforts to self-correct.

Fodera said he believed that, especially under a new commissioner, DHS was making "an ongoing effort to be the best they can be."

Contact staff writer Alfred Lubrano at 215-854-4969 or alubrano@phillynews.com.