This case was originally brought by 13 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 seeks 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.
In July 2000, the plaintiffs filed a Motion for Class Certification. The proposed class is made up of all children in care who have been moved from one home or facility to another without being afforded notice and an opportunity to be heard. Defendants spent almost a year conducting discovery related to the Motion for Class Certification.
Plaintiffs alleged in their complaint that federal statutes require that whenever a foster child’s placement is changed that (1) the child be afforded procedural safeguards and (2) that the child’s case plan be amended to reflect the reasons for the change and how the new placement meets the child’s needs. In August 2000, defendants filed a motion to dismiss the federal statutory claims. On November 9, 2000, the court denied defendants’ motion to dismiss the federal statutory claims but did so without prejudice to renew the motion.
In March 2001, defendants filed a Motion for Partial Summary Judgment. The Motion argued, inter alia, that under the AACWA and ASFA any rights to notice and hearing prior to a change in the child’s foster care placement are rights of the parent not the foster child’s. Defendants also argued that children have no constitutional right to a hearing prior to a change in placement. They argued that even if foster children did have a right to procedural safeguards, Washington state law provided adequate protections. In this same motion, defendants asserted several defenses to the named plaintiffs’ claims for damages. Among these was the argument that former DSHS Secretary Quasim could not be vicariously liable for any of the alleged unconstitutional actions of DSHS caseworkers.
In May 2001, Judge Nichols granted defendants’ Motion for Partial Summary Judgment. He held 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 against DSHS and Secretary Quasim but left state law claims in support of the damage action.
On May 30,2001, plaintiffs filed an Amended Motion for Class Certification 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. The Amended Motion also specifically set forth, under Rule 23(c)(4), the proposed issues to be addressed on behalf of the plaintiff class. On June 25, 2001, the Court granted plaintiffs’ Motion to Certify the Class.
In June 2001, the Children’s Alliance (a group of 150 providers including the Foster Parent Association & Children’s Home Society), moved to intervene with the support of the plaintiffs. Plaintiffs also moved to bifurcate the proceedings so that the class claims and request for injunctive relief would be heard by the Court first. Defendants then moved to dismiss as moot the equitable claims of named plaintiffs who turned eighteen since the filing of the lawsuit. On June 29, 2001, the Court denied the Children’s Alliance’s Motion to Intervene concluding that the plaintiffs were already adequately represented by Mr. Farris and NCYL. Judge Nichols also denied defendants’ Motion to Dismiss the Adult Plaintiffs and the plaintiffs’ Motion to Bifurcate.
In June 2001, defendants filed another Motion for Summary Judgment. This motion was “Based Upon Separation of Powers and Non-Liability for Discretionary Policy Decisions.” They argued that any order by the court “taking over” the foster care system infringed upon the legislative and executive branch’s authority to determine how state resources would be allocated and expended. Defendants’ motion was denied.
In July 2001, defendants moved for summary judgment on the substantive due process claims in the case. They conceded that children in foster care were entitled to food, shelter, and protection from physical harm but argued that the emotional harm and deprivation of mental health treatment alleged by plaintiffs did not arise to a Fourteenth Amendment violation. The Court denied defendants’ motion.
In August, pursuing a strategy of trying to narrow their areas of liability, defendants filed yet another motion for partial summary judgment. They sought dismissal of claims under the Americans with Disabilities Act and similar Washington state laws against discrimination. This motion was granted by Judge Nichols.
In late September, on the eve of the trial, the parties agreed to settle the individual plaintiffs’ claims for monetary damages. Defendants have 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 whatever else 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. Plaintiffs accepted the court’s offer but defendants refused even to meet with the court’s expert. Following the initial hearing on the plaintiffs’ proposed injunction, the court gave defendants another 30 days to submit their own proposal and asked defendants to reconsider their refusal to meet with the consultant. Defendants failed to submit any alternative injunction and again refused to meet with the court’s expert. 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, certified the case for expedited appeal to the Washington Supreme Court, and conditioned the stay upon defendants’ filing their opening brief in the Supreme Court no later than July 22, 2002.
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. The settlement builds upon and incorporates some parts of the state’s Kids Come First II Plan, which is Washington’s federal Program Improvement Plan. A five person panel will wield considerable authority over the state’s child welfare system. Among other responsibilities, the panel has the authority to set professional standards for the day to day practices of the agency and to devise specific actions the agency must take to improve children’s mental health and services to adolescents. The agency is granted a fifteen-month grace period before the panel may revise actions to be taken in areas other than mental health and adolescents. The panel will recruit its own staff.
The court has approved the proposed settlement. Attorneys’ fees have been paid. In the first year since 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. In Feb 2006, the Panel released its implementation plan for reform. The plan set out measurable outcomes and annual benchmarks in order to turn the promises of the settlement agreement into reality.
In March 2006, the Panel (www.braampanel.org) appointed to monitor efforts to improve Washington state's foster care system released its first monitoring reporting. The Panel found that the State failed to complete more than 70 percent (32 of 45) of the "action steps" to be completed by the end of 2005.
April 2007, marked the first release of long-awaited Braam benchmark data. The benchmark data revealed that the state has failed to adequately improve in any of the measured areas, including placement stability – a focus of the Braam case. In fact, in one area of placement stability, the lives of foster children have actually gotten worse since settlement of the case.
The Department must now develop compliance plans for all of the benchmarks that it failed to meet. For the 17 benchmarks for which the Department failed to provide adequate data, the Department must provide detailed information about how it will gather that data. For the 11 benchmarks for which the Department provided data but failed to meet the required goals, the Department must devise plans and strategies to improve results for children in foster care.Once the Department submits its proposed compliance plans, the plaintiffs will have an opportunity to provide comments. The Panel will have final approval over the plans. The fourth six-month monitoring report is due in September 2007.
Counsel: Timothy C. Farris & Cynthia Novotny, Brett & Daugert, Bellingham, WA;
William Grimm &
Bryn Martyna, National Center for Youth Law; John Midgley & Casey Trupin, Columbia Legal Services.
