Danieal Kelly lawsuit against DHS is filed

The law firm that represents Danieal Kelly filed an intended class-action lawsuit yesterday against the city and state on behalf of 28,000 children and their 56,000 parents who receive services through the embattled Department of Human Services.

The federal suit, brought by Mildenberg & Stalbaum, calls DHS "an unsafe agency for children, in violation of the federal constitutional and statutory rights of abused, neglected and dependent children."

News of the suit so angered Mayor Nutter that he interrupted his activities at the Democratic National Convention in Denver last night to decry the litigation in a phone interview.

He called it "the worst example of an opportunistic lawsuit." And "an absolute disgrace."

"They have the audacity to claim they're riding to the rescue when, really, they're riding in the ambulance," Nutter said. "This is obviously coming on the heels of a suit from the same firm with regard to Danieal Kelly. This kind of nonsense has to stop. They should be embarrassed."

Nutter said that reforms of DHS were under way, but that the law firm preferred to "ignore" the changes "in hysterical fashion, trying to scare people. It's irresponsible."

David Mildenberg, the lawyer who brought the suit, did not respond to repeated requests for comment.

The suit, filed in U.S. District Court in Philadelphia, further alleges that the city's child-welfare system "is in a crisis, and as a result, innocent children are dying, being neglected and abused around the clock."

The suit, which was also brought on behalf of "indigent clients" of the law firm - Veronica Spencer and Bryan Jones and their eight children - seeks appointment of a federal overseer of DHS, as well as monetary damages to be determined at trial.

With withering vitriol equal to Nutter's, advocates who have severely criticized DHS in the past excoriated Mildenberg & Stalbaum yesterday and questioned the firm's motives.

They said the suit was misguided because it would divert attention from DHS as it worked to make reforms cited by recent panels looking into its performance.

Also, they said, it is unusual for the same firm that has filed a civil suit in a matter to then file a class-action suit.

In that civil suit, Mildenberg & Stalbaum is seeking damages on behalf of Danieal Kelly, 14, whose emaciated, bedsore-ridden body was found in her mother's home in August 2006. She was supposedly under DHS care.

"Is this firm in this for change [of DHS] or for cash?" asked Frank Cervone, executive director of the Support Center for Child Advocates. He was involved in a class-action suit against DHS in 1990 that brought about reforms.

"This suit takes energy from an agency [DHS] that is already trying to fix what it knows is broken," said Richard Gelles, dean of the University of Pennsylvania School of Social Policy and Practice. Gelles has been a vocal critic of DHS's handling of the Kelly case.

"The kindest thing I can say about these lawyers is that I don't understand what they are doing or why."

After The Inquirer reported in October 2006 the circumstances under which Danieal Kelly died, and the budding murder investigation that followed, Mayor John F. Street created the Child Welfare Review Panel to overhaul the agency.

A grand-jury investigation followed. Last month, the grand jury released a blistering 258-page report filled with criticism of the people involved in Danieal Kelly's case: her parents, the DHS and its contractors. The report concluded that DHS practices and personnel contributed to the girl's death. Criminal charges were brought against nine people, including the girl's mother and father, two DHS caseworkers, and two employees for MultiEthnic Behavioral Health, a private agency hired by DHS to visit the young girl.

To assess DHS progress in changing its practices, the city has created the Community Oversight Board, which continually monitors DHS.

Yesterday, board cochair Carol Spigner said that the lawsuit's allegation that "innocent children are dying, being . . . abused around the clock" was an "overstatement."

She acknowledged that while DHS had made "significant progress," there were some areas in which the agency was not meeting benchmarks.

"Quite frankly," Spigner said, "we are concerned about them, especially in the area of meeting face-to-face with children every month. They have yet to meet their deadline in that area."

Still, Spigner said, a class-action lawsuit would be a major distraction for the agency that could divert attention from reforms.

Cervone, who worked on the 1990 case, said that that class-action suit took eight years to complete.

Such cases, he added, are extraordinarily complex. And, he said, "the lawyers seem to be unfamiliar with this field of practice, according to their biographies."

Currently, there are seven child-welfare systems operating under court orders as a result of class-action suits, including New Jersey's, said Marcia Lowry, executive director of Children's Rights Inc. in New York.

"My organization has brought most of the class-action litigation around the country, and I haven't heard from these people," Lowry said of Mildenberg & Stalbaum.

Class-action suits such as this one are usually meant to be a catalyst for change, advocates said.

But, said Robert Schwartz, executive director of the Juvenile Law Center, the death of Danieal Kelly is already serving as that catalyst.

"DHS has been through its time of crisis," he said. "There was a blue-ribbon panel, and new leadership brought in, all working to implement reform. So the things that would happen after such a lawsuit are already under way.

"Whether this lawsuit brings about change is a real long shot. Maybe 100-1 against."