Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and wellbeing and to reconnect them with a permanent family, hopefully their own.

Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care to all children in foster care, they are all too often failing in this vital mission. High caseloads, insufficient caseworker training and compensation, a combination of unstable and ineffective agency management, and a lack of resources plague foster care systems from coast to coast. As a result, children who were removed from their homes for basic protection actually suffer continuing harm in state care.

The federal government has sought to improve the performance of state foster care systems through legislative reforms that have subjected these systems to the oversight of family court judges and federal auditors. Though well-intended, these federal reform efforts have not achieved the desired result. The same structural impediments that historically have prevented child welfare agencies from delivering quality services similarly have blunted the impact of federal reforms.

Child advocates have utilized class action litigation to ignite and sustain systemic reform. These class actions suits, typically involving claims for violation of substantive due process and statutory rights, have resulted in court enforceable consent decrees that have resulted in improved care, services, and permanency outcomes for children by obligating state agencies to undertake essential structural improvements. This Essay will present the disappointing history of the federal reform efforts and the promise that structural reform class actions hold for children in foster care.