This case was originally brought by thirteen current and former foster children seeking damages for injuries plaintiffs suffered as a result of state agency’s practice of shuttling them from one foster home and facility to another. In March, 2000, the court approved the filing of a Second Amended Complaint in which plaintiffs added claims on behalf of the class of foster children moved to three or more placements while in the state’s custody. The class sought relief under provisions of the Adoption Assistance and Child Welfare Act, 42 U.S. C. § 671 et seq, the Due Process Clause of the Fourteenth Amendment and numerous state statutes and regulations.
Between July 2000 and August 2001, both parties filed numerous pre-trial motions. Plaintiffs filed a Motion for Class Certification (July 2000) and an Amended Motion for Class Certification (May 2001), revising the proposed class definition to include all children who are or will be in the custody of DSHS and who have been in three or more placements since DSHS assumed custody. On June 25, 2001, the Court granted plaintiffs’ Motion to Certify the Class. Defendants filed multiple Motions (or Partial Motions) for Summary Judgment (March 2001, June 2001). Judge Nichols granted a Partial Motion (in May 2001), holding that plaintiffs were not entitled to the procedural protections they sought either under the Fourteenth Amendment or the federal statute. He also dismissed the damage claims under 42 U.S.C. § 1983, but left state law claims in support of the damage action. He also granted a motion (in August 2001) that sought dismissal of claims under the Americans with Disabilities Act and similar Washington state laws against discrimination. However, Judge Nichols denied a motion (in July 2001) claiming that the emotional harm and deprivation of mental health treatment alleged by plaintiffs did not arise to a Fourteenth Amendment violation.
In late September 2001, on the eve of the trial, the parties agreed to settle the individual plaintiffs’ claims for monetary damages. Defendants agreed to pay $1.3 million dollars to the 13 individually named plaintiffs. Each child will have $100,000 placed in trust to meet his or her needs for counseling, education, housing, job training, or anything else that would be helpful. In an effort to postpone or avoid the trial scheduled to begin in mid-October, defendants then sought discretionary review by the Washington Court of Appeals. They sought appellate intervention on grounds that the trial court had made obvious or probable error in its certification of the class and denial of summary judgment on the substantive due process and separation of powers claims. On October 9, 2001, a week before trial, the Court of Appeals denied review.
Following a seven-week trial, the jury returned a verdict for plaintiffs. Jurors concluded that state practices violated the constitutional rights of foster children and that those practices caused children to suffer significant harm. Following plaintiffs’ submission of a proposed injunction in March, the Court requested that the parties meet with an organizational systems reform and child welfare expert to determine if an acceptable remedy could be reached, but Defendants did not comply with this request. On May 31st, 2002 the Court entered an injunction granting plaintiffs’ requested relief in every area addressed in the proposed injunction. Defendants immediately filed a notice of appeal and a Motion for Stay. On June 7, 2002, the Court of Appeals issued a partial stay of the injunction, and certified the case for expedited appeal to the Washington Supreme Court.
The Washington Supreme Court granted certiorari June 13, 2002. Oral argument was held in November 2002. In December 2003, the Court reversed the judgment on the basis of an error in the jury instructions. On remand, the Court directed that the defendants were not entitled to a jury trial.
Plaintiffs’ arguments on the nature and extent of foster children’s constitutional rights were explicitly upheld by a unanimous court. The Supreme Court rejected the State’s arguments that children in foster care have no constitutionally protected rights or that the rights they do possess are no greater than convicted criminals in prison. Specifically, the Court held, “[t]hat at its core, foster children have a substantive due process right to be free from unreasonable risk of harm, including a risk flowing form a lack of basic services, and a right to reasonable safety.” The standard to be applied in making this determination is that applied by the U.S. Supreme Court in Youngberg v. Romeo - did the state’s conduct fall substantially short of the exercise of professional judgment, standards, or practice.
The definition of harm adopted by the Court included, as plaintiffs had urged, both harm to foster children’s physical or mental well-being. The Court also rejected the State’s defense that budgetary constraints allow it to violate the rights of children for whom it is caring and put the state on notice that it can order expenditures, if necessary, to enforce constitutional mandates.
The Court did not address the challenge to class certification and upheld the lower court’s dismissal of the federal and state statutory claims raised by plaintiffs in their cross appeal. It also ruled on several evidentiary issues. It found that the trial court’s admission of past abuses by the agency was proper. Characterizing Child Welfare League of America and American Academy of Pediatrics standards as “aspirational” it held it was an abuse of discretion for the trial court to have admitted them. Finally, while affirming the trial court’s refusal to admit statistical data tending to show that Washington exceeds the record of other states, the Court held that evidence of actual professional standards followed by other states should be admitted on remand.
Upon remand, the trial court ordered the parties to attempt to reach settlement through mediation. Judy Meltzer, deputy director of the Center for the Study of Social Policy, and Kathleen Noonan, a consultant to the Annie E. Casey Foundation, were the mediators. After several lengthy sessions with the mediators, a comprehensive settlement was reached at the end of July 2004, and the settlement was approved by the court. Additionally, attorneys’ fees were paid. The settlement built upon and incorporated some parts of the state’s Kids Come First II Plan, which was Washington’s federal Program Improvement Plan.
The settlement also provided for the establishment of a five person panel that wields considerable authority over the state’s child welfare system. The independent panel was given the responsibility, in collaboration with the Department, and with substantial input from plaintiffs, to develop outcomes, benchmarks, and action steps, as well as professional standards, for the six areas identified in the settlement agreement. The settlement agreement also calls for the panel to issue progress reports regarding the settlement every six months. The five members of the panel are: John Landsverk, who chairs the panel and fills the researcher position; Jan McCarthy who fills the mental health position; Jess McDonald, who fills the public administrator position; and Senator Jeanine Long and Professor Dorothy Roberts, who fill the two open positions. The panel has one full time staff member, Carrie Whitaker.
In the first year of their appointment, the five member panel developed goals and action steps for each of the six areas addressed by the Settlement Agreement. Several public hearings were held throughout the state and comments were submitted by plaintiffs and defendants after which the Panel revised the proposed goals and actions steps. Plaintiffs’ attorneys gave input on the development of the goals, outcomes, benchmarks, and action steps for each of the six areas addressed by the Settlement Agreement, through letters and comments at public hearings.
In February 2006, the panel released its Implementation Plan, a 91 page document that has goals, outcomes, benchmarks, and action steps for each of the six areas of the settlement and defines the specific and enforceable performances required by the settlement. A Revised Implementation Plan was released in July 2008.
Plaintiffs’ attorneys also gave significant input into development of the professional standards that will be used to gauge whether the state is meeting the needs and constitutional rights of children in care. The final version of the standards was issued by the panel in March 2007.
Under the settlement agreement, the parties agreed that the standards established by the panel would be used if the case goes back to court, in the event the Department fails to complete action steps or reach benchmarks. The issue in such an enforcement proceeding would be whether the Department's noncompliance with the Implementation Plan constitutes a substantial departure from professionally accepted standards.
The panel’s professional standards are composed of selected standards from the Council on Accreditation (COA). In a small number of cases in which the panel found the latest edition of the COA standards to be insufficient, the panel added its own interpretations. These incorporate concepts from other sources such as the America Academy of Pediatrics and COA standards that were not selected for full inclusion.
Under the settlement agreement, the panel is required to issue monitoring reports every six months to track the Department’s performance. In March 2006, the Panel released the First Monitoring Report, covering performance for the period of July 1, 2005 through December 31, 2005. The Department developed an initial compliance plan in response to those action steps that were found incomplete and plaintiffs gave their input to the panel on the adequacy of the plan – ultimately, the panel rejected the Department’s compliance plans for three action steps: (1) reducing caseloads to Council on Accreditation standards; (2) providing appropriate respite care; and (3) providing monthly visits to foster children and caregivers.
The panel issued its Second Monitoring Report on September 20, 2006, covering the performance period of January 1, 2006 through June 30, 2006. The panel issued its Third Monitoring Report on April 17, 2007, covering the performance period of July 1, 2006 through December 31, 2006. While the first two monitoring reports had tracked the Department’s performance on action steps, this was the first report on their performance on annual statistical benchmarks.
In September 2007, the results of the Braam foster parent survey were released. It is believed to be the most comprehensive ongoing state foster parent survey ever conducted in this country. Over 1,200 foster parents were interviewed on a range of topics related to the Plan. The survey was conducted by the Social & Economic Sciences Research Center at Washington State University with funding from the Department and input from the Department, stakeholders, the Panel, and plaintiffs’ counsel. The Braam Panel will use some of the questions and results to track the Department’s progress towards compliance with components of the Plan; others will be used to help the Department and stakeholders improve services in a variety of ways. The results of the second annual Foster Parent Survey were released in September 2008. For this survey, over 1,300 respondents were interviewed about their experiences as foster parents and relative caregivers during 2007.
The panel issued its Fourth Monitoring Report on October 4, 2007, covering the performance period of January 1, 2007 through June 30, 2007. That report covered the Department’s performance for FY 2006 on 13 annual benchmarks, none of which were met. Those included a failure to reach annual benchmarks for the percentage of children who received CHET (Child Health and Education Tracking) screens or a completed EPSDT (Early Prevention Screening, Diagnosis, and Treatment) exam within 30 days of entry to care, and who received a private and individual face-to-face visit from a caseworker for each full placement month. A number of action steps remained incomplete as well.
On January 16, 2008, Plaintiffs filed a motion to enforce the settlement agreement, based on action steps that remained incomplete as of the Fourth Monitoring Report. The motion asked for court enforcement in four specific areas: (1) safety – more than 60% of foster children are not receiving monthly visits from caseworkers, and the state refuses to keep detailed data on caseworker visits; (2) caseloads – statewide average is 25 cases, although some caseworkers handle many more than that, and the state has failed to submit an acceptable plan to get caseloads down to the maximum of 18 cases per worker required by professional standards; (3) sibling contact – less than half of siblings are receiving the twice monthly visits with their siblings required under the Settlement; (4) health and education screenings – more than 2/3 of foster children are not receiving legally mandated child health and education screening within the required 30-day time frame.
The filing of this motion received significant media attention, and caught the attention of the state legislature and the Governor, who were making decisions on the budget around the same time. As a result, the 2008 Supplemental Operating Budget, signed at the beginning of April 2008, directly addresses three of the four items in the motion; all except caseloads. Altogether, the budget provides almost $5 million in state funds ($6.3 million in total funds) for Braam items related to the recent motion to enforce.
The court ruled in Plaintiffs’ favor on the motion to enforce on June 30, 2008, finding that the Department had failed to comply in each of the above areas, as well as that it failed to provide adequate data about the children in its care. This decision also attracted significant media attention. The Court ordered the Department to, within a month, detail how will comply in the four areas, and requires the Department to show “demonstrable” progress within a few months. The parties subsequently negotiated attorneys’ fees and costs for bringing the motion to enforce. In June 2009, the parties reached a settlement about the fees and costs to be paid for bringing the motion to enforce. The agreement also included fees for the remainder of the duration of the settlement agreement; the parties agreed that the State of Washington will pay plaintiffs’ counsel a set amount each year for enforcement, regardless of whether plaintiffs bring a court action.
In September 2008, the results of the first annual Survey of Youth in Foster Care were released. The survey asked 706 youth ages 15 to 18 that were in foster care during 2007 about their experiences in care. It is believed to be the largest single state survey of youth in foster care ever conducted. The survey was conducted by the same Washington State researchers who conducted the Foster Parent Surveys. The survey included questions on placements in foster homes, interactions with social workers, awareness of and experiences with services to adolescents, life experiences related to sibling relationships, significant adults, school, physical safety, running away and homelessness. Particular emphasis was placed on how well foster care youth felt the system had prepared them for living on their own.
On October 1, 2008, the Panel issued the Fifth Monitoring Report, covering the Department’s performance in fiscal year 2007 (for most measures) or calendar year 2007 (for some measures). The report included a significant amount of data on the benchmarks measured by the Implementation Plan, and also included data from the second annual Foster Parent Survey and the first ever Youth Survey. The report showed improvement in some areas (placement stability, mental health service provisions), but also highlighted continuing areas of concern (failure to provide monthly visits to over half of children in foster care, lack of regular visits or contact between siblings placed apart).
The Panel issued its Sixth Monitoring Report, on March 16, 2009, covering the State’s performance on Action Steps and Outcomes through December 31, 2008. The State was found to be out of compliance on one Action Step, and was required to submit a compliance plan. For 12 outcomes, the State failed to reach the Fiscal Year 2008 benchmarks, and was required to submit compliance plans. On June 6, 2009, the Panel issued its decision on the compliance plans. The State failed to submit a compliance plan for the one Action Step for which a plan was required (initial mental health screens), and of the 12 compliance plans for Outcomes, 7 were approved, 4 were not approved (two mental health outcomes and two on placement with siblings), and an extension was granted for the submission of one plan (caseload size), to allow the Department to analyze the 2009-2011 biennial budget.
In response to the monitoring report, plaintiffs’ attorneys created a trend report tracking the Department’s performance since data was first collected in Fiscal Year 05. Overall, the State has shown improvement in the areas of placement stability, mental health assessments and continuity of care, placement in inappropriate settings, safety in out of home care, monthly visits from caseworkers, sibling visits, number of children running away from care and average days on the run, caseworker caseloads, and protection measures for sexually aggressive youth. The State has shown little or no improvement in the areas of the number of available beds for youth in care, placement with siblings, adequate care for medically fragile children, protection measures for physically aggressive youth, and foster parent training and information.
The Panel issued its Seventh Monitoring Report on October 8, 2009. The Department was found to be out of compliance in 13 areas requiring compliance plans. In January 2010, the Panel accepted some of the plans, and rejected others. The Department then provided revised Compliance Plans for the rejected plans – in the areas of foster parent training, foster parent support, provision of information to caregivers, placement of sexually aggressive and physically assaultive youth, sibling visits, and use of data on attendance, truancies, suspensions, and expulsions. Plaintiffs submitted comments on those revised plans on March 1, and the parties are awaiting a final decision from the Panel.
The results of the Third Annual Foster Parent survey were released on October 5, 2009. The survey revealed an improvement in monthly visits made to foster children, though the state still falls behind the Braam requirement. It also demonstrated significant improvement in the continuity of care for children receiving mental health services.
Data for 2009 was released in early 2010. The 2009 report is the first which uses data from the Department’s new case management information system (FamLink). The new data shows improvements in caseloads and health and medical screening, as well as the frequency of foster children running from placements and the time they spend on the run. However, in many other critical areas there has not been progress – including visits and contacts between siblings – and the Department is meeting annual benchmarks for only 7 of its 32 reform outcomes.
Plaintiffs’ attorneys have been carefully tracking the Washington State budget and its effect on Braam requirements. The Panel has also taken a slightly more active role in gathering information from the Department about the potential impact of budget cuts on Braam items, and requiring them to account for these impacts in their compliance plans.
At the Panel meeting on June 15, 2009, the new DSHS Secretary, Susan Dreyfus, spoke to the Panel and the parties and stakeholder attendees. She expressed her support for the Braam reform process, stating that she saw it as a “road map” for change, and that she believes that everything in the settlement is “good for the children.” She has continued to be clear about her commitment to the Braam reform process.
In addition to all of the above, Plaintiffs’ attorneys have been engaged in a number of outreach efforts to educate people in Washington State about the Braam reform process, and receive input as to whether the Implementation Plan is yielding results on the ground. These efforts have included development of a website with up-to-date information about the reform process (www.braamkids.org), and development of a training for CASAs, foster parents, dependency attorneys, foster parents, court staff and commissioners, and other youth advocates – the training was well received by groups ranging from 30-70 people in Yakima, Spokane, Tacoma, Vancouver, and Wenatchee. Most recently, Plaintiffs’ attorneys presented on Braam to 60 CASAs and other advocates at the Washington State CASA Annual Conference in October 2008. Plaintiffs’ attorneys also keep stakeholders up to date by sending out regular emails to people who have signed up to be on the list serve through the Braam Kids website, and issuing press releases on important developments.
On June 1, 2006, Plaintiffs’ Counsel was honored with the “Voices for Children” award from the Children’s Alliance, a Washington State public policy advocacy organization, for their work on Braam. The Children’s Alliance selected four individuals in addition to the Braam team to receive the award.
Counsel:
William Grimm &
Bryn Martyna, National Center for Youth Law; Timothy C. Farris, BD Law Group, PLLC, Bellingham, WA; John Midgley, Casey Trupin & Erin Shea McCann, Columbia Legal Services.
