Governor Kelly Asks To Be Removed From Kansas Foster Care Lawsuit

Attorneys for Kansas Gov. Laura Kelly said she's not responsible for regulating the state's foster care agencies and shouldn't be named in a class-action lawsuit. NOMIN UJIYEDIIN / KANSAS NEWS SERVICE
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By Nomin Ujiyediin – Kansas News Service

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 it does not comment on pending litigation.

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.

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.

The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on the health and well-being of Kansans, their communities and civic life. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to

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Derek Nester was born and raised in Blue Rapids and graduated from Valley Heights High School in 2000. He attended Cowley College in Arkansas City and Johnson County Community College in Overland Park studying Journalism & Media Communications. In 2002 Derek joined Taylor Communications, Inc. in Salina, Kansas working in digital media for 550 AM KFRM and 100.9 FM KCLY. Following that stop, he joined Dierking Communications, Inc. stations KNDY AM & FM as a board operator and fill-in sports play-by-play announcer. Starting in 2005 Derek joined the Kansas City Chiefs Radio Network as a Studio Coordinator at 101 The Fox in Kansas City, a role he would serve for 15 years culminating in the Super Bowl LIV Championship game broadcast. In 2021 he moved to Audacy, formerly known as Entercom Communications, Inc. and 106.5 The Wolf and 610 Sports Radio, the new flagship stations of the Kansas City Chiefs Radio Network, the largest radio network in the NFL. Through all of this, Derek continues to serve as the Digital Media Director for Sunflower State Radio, the digital and social media operations of Dierking Communications, Inc. and the 6 radio stations it owns and operates across Kansas.