As the Oregon state legislature considers the fate of an increasing number of foster children sent to out-of-state institutional facilities, legal advocates filed a class-action lawsuit today in federal court designed to address the state of its “overwhelmed” child welfare system.
Filed by New York-based A Better Childhood, Disability Rights Oregon and Davis Wright Tremaine, the lawsuit says Oregon “continues to be a constitutionally inadequate parent, revictimizing already vulnerable and innocent children.”
Oregon Governor Kate Brown (D), Oregon Department of Human Services Director Fariborz Pakseresht, Child Welfare Director Marilyn Jones, and the Oregon Department of Human Services (DHS) were named as defendants in the suit, Wyatt B. v. Brown.
Lawyers sued on behalf of 10 plaintiffs, all current Oregon foster youth, ranging from 1-year-old Noah F. to 17-year-old Norman N. The lawsuit includes all Oregon foster children who are or will be in the legal and physical custody of DHS.
Three specialty classes of youth in care are also included: children with physical, intellectual, cognitive or mental health disabilities; children 14 years old and older, who are eligible for transition services and lack an appropriate reunification or other permanency plan; and children who identify as sexual or gender minorities. This is believed to be the first time a child welfare class-action lawsuit has identified youth aging out of foster care and a lesbian, gay, bisexual, queer or transgender population as subclasses.
In the 77-page complaint, lawyers for the children allege that DHS has failed to provide enough placements and services for foster children in Oregon, and especially those suitable for children dealing with a high degree of mental health issues as a result of their trauma.
“Instead, DHS places these children in inappropriate institutions, ships them out of state where they are placed in costly and questionable for-profit congregate programs that do not address their needs, or largely abandons them so they wind up in homeless shelters or on the streets,” the lawsuit says.
According to the lawsuit, that treatment violates the Americans with Disabilities Act and other federal anti-discrimination and child welfare laws.
The complaint describes the state’s foster care system as “so dysfunctional that Oregon cannot accurately track how bad its services are.” The complaint also faults Oregon for ignoring recommendations for system improvement for more than a decade, inadequate assessments and case planning, a high level of caseworker turnover and placement instability that often leads to foster children staying at institutions with little oversight.
“There has been an extraordinary abdication of responsibility for the kids in Oregon’s foster care system,” said A Better Childhood Executive Director Marcia Lowry, a litigator in the lawsuit who has led scores of class-action lawsuits against child welfare systems over the past 40 years. “I don’t think there is anyone in a position of leadership and authority in the government that is really taking responsibility for what’s happening to these kids. I think they’ve been totally abandoned.”
Sent to a Homeless Shelter Seven Times
The lawsuit draws on the experiences of children like Naomi B., a 16-year-old from Corvallis, Oregon, who has spent the past five months shuffling between homeless shelters and institutions, many of them designed to incarcerate young people in the state’s juvenile justice system.
The suit alleges that Naomi first entered foster care in November 2018 after twice ending up at Good Samaritan Hospital’s emergency room threatening suicide. After DHS found that she could not safely stay with her father, a placement couldn’t be found for Naomi. With her father’s consent, Naomi was sent to Jackson Street youth shelter, which DHS contracts with for placements. It would be the first of seven times she was sent to the shelter.
On December 13, 2018, Naomi was sent to Creekside, the remodeled former headquarters of a police department that is now designed to provide a higher level of care. On her first day, Naomi was attacked by another resident and witnessed her roommate in a locked cell slash her wrists.
After another stint at a juvenile detention center and a failed placement at the home of a family friend, Naomi returned to the homeless shelter. During this time, Naomi still had not been provided with adequate counseling or therapy, according to the lawsuit.
At the end of January, Naomi was placed at the Youth Inspiration Program (YIP) in Klamath Falls, Oregon. An addiction and behavioral treatment program for girls at risk of deep involvement in the state’s juvenile justice system, the facility includes DHS-contracted shelter beds alongside a section of beds earmarked for girls in the juvenile delinquency program. During the time she was staying at the locked facility, Naomi was not allowed outside the facility. Instead, she was escorted to a 30-by-30 foot concrete outdoor exercise yard, which was enclosed by a 20-foot-tall fence topped by barbed wire.
According to the complaint, youth at YIP are only allowed one book in their rooms at a time, and all clothes and other personal items are secured in a separate locker room. During her time there, Naomi’s education suffered. She was only allowed one-and-a-half to two-and-a half hours of online schooling daily, exhausting the facility’s educational offerings over the course of two months.
She was given just one hour of therapy a week, while having to attend mandatory daily group substance abuse and sex abuse therapy sessions, despite no problem with substance use or a history of sex abuse.
Foster Homes Have Declined in Oregon
According to the most recent federal numbers available from 2017, there were 7,972 children placed in Oregon’s foster care system. That’s actually a 12.5 percent drop from five years prior, when the state had 8,686 children in care.
Still, the state’s struggle to recruit enough foster homes has been a protracted effort in recent years. A 2018 audit from Oregon Secretary of State Dennis Richardson (R) found that foster homes in the state had plummeted by 50 percent in five years, leaving few placement options for youth in care.
According to a 2016 federal review by the Children’s Bureau of the U.S. Department of Health and Human Services, a lack of foster homes helped drive poor marks on foster care outcomes like the ability of the state to find a permanent home for foster children and the safety and well-being of children in care.
“Due to this shortage of foster homes, placement decisions appear to be driven, at times, by foster home availability rather than the needs of the child,” the review reads.
However, in a recent interview with the Oregonian, Jones, the state’s child welfare director, said that the issue is not foster homes but the state’s lack of intensive care available at institutions.
“We don’t have … foster families that can meet the high trauma that these children have,” Jones said. “They can be suicidal and homicidal. They can have self-harm or have harmed others.”
Out of State, Little Oversight
This is not the first time that Oregon has faced a class-action lawsuit about where the state places its foster youth. In 2016, the Oregon Department of Human Services was sued to end the housing of foster kids in hotels, state offices and other temporary locations. Last year, state child welfare officials agreed to phase out the practice by 2020.
However, since 2017, the practice of placing children out-of-state has jumped dramatically. The reporting of Lauren Dake at Oregon Public Radio and Hillary Borrud at The Oregonian have revealed several instances in which foster children have been placed at institutions with little oversight from the state.
Last Thursday, at a meeting of the Oregon state Senate Human Services Committee, Sen. Sara Sara Gelser (D) found that 85 Oregon foster youth are now placed out of state, a number that has more than doubled since 2017. The majority of Oregon foster youth located out of the state are placed in residential placements operated by Sequel Youth and Family Services and Acadia Healthcare. Gelser raised questions about Oregon’s oversight of these privately run residential treatment facilities, which have faced allegations of abuse and neglect. In some cases, there is no record of Oregon child welfare workers checking on foster children placed at these facilities.
“We need more action than a roundtable discussion,” Gelser said at the meeting. “We need people on the ground checking on each of these children today and getting them home.”
Case Planning Has Suffered
The state also faces severe issues with elevated caseloads and caseworker turnover. The 2018 report from the Secretary of State found that Oregon child welfare workforce had a 23 percent turnover rate and about one third of staff had been on the job for 18 months or less. In response, Jones and other state leaders are supporting a state bill this year that would remove a state requirement for child welfare workers to possess a college-degree.
According to the lawsuit, poor training and support of caseworkers has contributed to inadequate assessments and case planning, meaning that many older children who remain in foster care receive little to no support for their transition to adulthood.
Of the children who have aged out of foster care in Oregon, 32 percent had been in care since before age 13, compared with 17 percent nationally.
Elliott Hinkle, a former foster youth who now works with youth in care in Portland, said that the state already has “plenty” of recommendations from years for reform. But with change slow to come, Oregon should now pivot toward prioritizing the healthy development of young people in care, Hinkle said.
“All this movement and shifting around has made for a lack of a consistent person or persons in their lives,” Hinkle said. “For the 10 youth in this lawsuit, that just scratches the surface of people in Oregon that are experiencing growing up not knowing what a healthy, consistent adult relationship in their life is like to carry them through to adulthood.”