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State Supreme Court in Washington Recognizes Constitutional Rights of Foster Children

 by Bill Grimm

Orignally published in Youth Law News, January-March 2004.

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Cory1 was 3 years old when she was taken from her parents’ home,where she was physically and sexually abused, and placed in the custody of Washington state’s Department of Social and Health Services (DSHS). For the next two years, Cory was moved repeatedly from one foster home to another. She began to develop attachment issues and serious mental health problems. When Cory was 5, a psychologist who evaluated her said that what she needed “desperately more than anything” was “stable longterm placement.” The state agency responded by moving her twenty more times. During her childhood, Cory lived in thirty-four different homes or institutions, including nine in a single year.

Braam v. State of Washington2

In August, 1998 a lawsuit was filed on behalf of Cory and 12 other foster children in the state of Washington, alleging that multiple placements and other practices by the state’s child welfare system caused the plaintiffs emotional and psychological harm, and violated their constitutional rights. Two years after the original suit was filed, it was expanded to include a class of more than 3,000 of the state’s roughly 10,000 foster children. State records show that almost 3,500 foster children have experienced between three and 10 placements, while another 370 children were moved between 11 and 20 times.3 The suit was brought by Tim Farris, a partner in Brett and Daugert of Bellingham,Wash., against the state of Washington, The Department of Social and Health Services and the Secretary of DSHS. The National Center for Youth Law (NCYL) in Oakland, CA, and Columbia Legal Services in Seattle later joined as co-counsel.

On Dec. 4, 2001, after a sevenweek trial, it took a Whatcom County, Wash. jury less than one day to reach its verdict in favor of the plaintiffs, finding that the state violated the constitutional rights of abused and neglected children in their care.

State Supreme Court Upholds Children’s Constitutional Rights

Last December, the Washington Supreme Court upheld those constitutional rights, but sent the case back for re-trial because of an error in the jury instructions. The new trial is scheduled to begin Sept. 13, 2004 in Whatcom County Superior Court. Before going to trial, Superior Court Judge David A. Nichols has required the two sides to engage in mediation.

Writing for a unanimous court, Washington Supreme Court Justice Chambers began

First, we must decide whether foster children possess substantive due process rights that the State, in its exercise of executive authority, is bound to respect. We hold that they do.4


The court then went on to define the extent of those constitutional rights. First, the court concluded

At its core, foster children have a substantive due process right to be free from unreasonable risk of harm, including a risk flowing from the lack of basic services and a right to reasonable safety.

The court went on to explain

To be reasonably safe, the State, as custodian and caretaker of foster children, must provide conditions free of unreasonable risk of danger, harm, or pain, and must include adequate services to meet the basic needs of the child.5


In affirming that children in foster care have constitutionally protected rights, the state supreme court noted that it was following the weight of authority among state and federal courts.6

Harm from Which Foster Children Must Be Protected

Many of the cases in which lower federal courts have upheld a violation involve the physical and/or sexual abuse of a child in a foster home.7 The usual perpetrator in these cases is a foster parent,a relative of the foster parent, or another foster child. Oftentimes, the abuse in these cases was not an isolated incident, but involved a series of injuries inflicted over time.

The children in Braam did not allege they had suffered the types of physical assaults, injuries, or sexual abuse that were the basis of the claims in many other cases.8 Instead, their claims were based upon the following five harms:



  1. Children are harmed by being subjected to unnecessary multiple placements. 
  2. Foster parents are inadequately trained, informed, and supported to provide proper care for children in the class.
  3. Children are denied necessary mental health care (assessments and treatment).
  4. Children are placed in unsafe placements (state Department of Social and Health Services [DSHS] offices, homes of sexual offenders, homes of violent offenders, detention centers, and jails.
  5. Children are separated from their siblings.

In Braam, the state argued that other federal and state cases narrowed any constitutional duty to foster children, to encompass only a right to safety that is met by not placing, or allowing a child to remain in the home of an abusive foster parent. The Braam court rejected this narrow definition, holding that “[e]xposure of the child to an unreasonable risk of harm violates the substantive due process clause. ‘Harm’ is to be given its ordinary meaning of physical or mental damage.”9 The court recognized that frequent moves of a child in foster care “may create or exacerbate existing psychological conditions,” 10 and that Washington’s legislature had found that “[p]lacement disruptions can be harmful to children by denying them consistent and nurturing support.”11

The Braam court also included protection from “pain” as a requisite of adequate care. However, while using dictionary definitions of “harm” to provide guidance on the nature and extent of the harm from which foster children must be protected, the court did not explain the “pain”from which such children are entitled to be protected.

Several lower federal court decisions have recognized claims based upon emotional or psychological harm. Unlike Braam, in which the facts supporting a claim of emotional harm were fully developed at trial, these decisions were made in the early stages of the case, before trial, and were based upon pleadings. In those cases where plaintiffs have alleged this type of harm, the courts have determined that such harm can support a due process claim. In Marisol A. v. Giuliani,12 the court held

Clearly the state is required to protect children in its custody from physical injury. This Court further finds that custodial plaintiffs have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being.13

In Brian A. ex rel Brooks v. Sundquist,14 the United States District Court for the Middle District of Tennessee also refused to adopt a narrow interpretation of the rights afforded foster children. The defendants argued that children in foster care are entitled simply to be protected from harm of which government officials know, or should have known, and to have their basic human needs met. In denying the defendants’ motion to dismiss, the court looked to Youngberg,15 but did not set forth the precise parameters of the due process rights.16

The Standard of Care

While holding that foster children have a right to be protected from harm while in the state’s care, proof that some harm was suffered does not per se impose liability on state officials. “Negligently inflicted harm is categorically beneath the threshold of constitutional due process.”17

While the United States Supreme Court has yet to rule on the rights of children in foster care,18 the Braam court noted that the Court has articulated two standards of culpability for persons in state custody: deliberate indifference, and professional judgment. Those standards have their origins in two Supreme Court decisions: Estelle v. Gamble,19 and Youngberg v.Romeo.20

The Estelle Case

Gamble was a prison inmate who injured his back while unloading a truck during a work detail. He claimed that the treatment he received after the injury was inadequate, and led to a worsening of his condition. His 1983 claim alleged cruel and unusual punishment, in violation of the Eighth Amendment.

The Supreme Court held that the government had an obligation to provide medical care for prison inmates since 

“[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death,’ … In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.” Estelle, 97 S.Ct. at 290.


The Court held that government officials’ conduct was to be measured by the standard of“deliberate indifference.”21 Prison officials who acted with deliberate indifference to serious medical needs of prisoners were in violation of the Eighth Amendment’s proscription against “unnecessary and wanton infliction of pain.”22 Deliberate indifference could be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” 23

The Youngberg Case

Nicholas Romeo was a profoundly retarded 33-year-old man with the mental capacity of an 18-month-old child, who lived with his parents until he was 26 years old.24 After his father died, Romeo’s mother petitioned the court to admit him to a state facility, because she was unable to care for him or control his violence.25 Following Romeo’s admission to Pennhurst State School and Hospital, he was injured many times. Some of the injuries were self-inflicted, and others were the result of assaults by other residents of the facility. For these injuries, Romeo’s mother, as his next friend, sought damages and injunctive relief against several Pennhurst staff members. An amended complaint alleged that hospital staff routinely physically restrained Romeo for long periods of time, and did not provide him with appropriate treatment or programs to address his mental retardation. At the trial, only claims to damages were pursued.

Drawing upon Estelle, the trial court instructed the jury that the defendants could be held liable on the plaintiff ’s Eighth and Fourteenth Amendment claims only if they found the defendants “deliberately indifferent to the serious medical [and psychological] needs of Romeo.”26 The jury returned a verdict for the defendants, and the plaintiff appealed.

The United States Court of Appeals for the Third Circuit reversed the decision, and remanded the case for a new trial. The appeals court held that the Fourteenth Amendment, and not the Eighth, was the proper source of the liberty interest for involuntarily civilly committed persons. The particular liberty interests of the plaintiff included freedom of movement, personal security, and habilitation designed to treat his mental retardation. The circuit court, however, could not agree on a single standard of conduct to apply in determining violations to the plaintiffs’ liberty interests. In assessing the adequacy of Romeo’s treatment, the majority of the en banc court held that defendants were liable only if the treatment was not acceptable in light of present medical or other scientific knowledge.27

The United States Supreme Court granted certiorari to “consider here for the first time the substantive rights of involuntarily civilly committed mentally retarded persons under the Fourteenth Amendment to the Constitution.”28 The state conceded that Romeo had basic rights to food, shelter, clothing, and medical care. Before the Court was the question of whether, and to what extent, he retained rights to safety, freedom from bodily restraint, and training. The Court quickly resolved the first two rights, finding

If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed – who may not be punished at all – in unsafe conditions.29

The Court found Romeo’s claim to training was “more troubling.”30 It noted that the plaintiff ’s description of the right to treatment changed through the course of the litigation. At the trial, it was “such treatment as will afford [residents] a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit.”31 On appeal, the Supreme Court viewed Romeo’s claim as much narrower – a right to “minimally adequate habilitation” which for Romeo meant “only training related to safety and freedom from restraints.”32 The Court agreed that such training was constitutionally required for someone in Romeo’s circumstances. It avoided the more difficult question of
“some general constitutional right to training,” noting

In view of the kinds of treatment sought by respondent and the evidence of record, we need go no further in this case.33


Drawing from its decisions on due process for civilly committed persons, the Court then added that a balancing of the liberty of the individual with the legitimate interest of the state must be considered in determining if Romeo’s rights were violated. This balancing led the Court to adopt the standard put forth in the concurring opinion of Judge Seitz in the circuit court

The Constitution only requires that the courts make certain that professional judgment was in fact exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.


The Court then added, in the most oft quoted part of the opinion

[T]he decision if made by a professional, is presumptively  valid; liability may be imposed only when the decision by a professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.34

It is this language from the Supreme Court’s opinion in Youngberg that the Braam court relied upon in rejecting the deliberate indifference standard used in prison cases.35

Justice Chambers wrote [W]e hold that ‘deliberate indifference is not well suited for analyzing the claims of the class. Foster children are entitled to a high standard … (citation omitted) Something more than refraining from indifferent action is required to protect these innocents.36

It gave three other reasons for rejecting the deliberate indifference standard:



  1. Federal cases applying the deliberate indifference standard have involved claims for damages and qualified immunity, not solely injunctive relief as in Braam here.
  2. The courts applying the deliberate indifference standard were merely applying the standard presented to them by the parties.
  3. The majority of cases to specifically address the issue have adopted the professional judgment standard.37

The Jury Instructions

Braam is unique in that no other case seeking to enforce the constitutional rights of a class of children in foster care has been tried before a jury. At the time of trial, the plaintiffs sought an injunction requiring statewide reforms in the child welfare system. State officials, who were the defendants in Braam, insisted upon a jury trial, even though all individual plaintiffs’ claims for damages already had been settled. They appear to have believed that if they could show the jury how much it would cost to provide the relief the children sought, the jury would let them off the hook.38

The jury was required to answer two questions to determine if state officials should be held liable for the inadequate care of children in foster care. They had to find that the level of care provided to foster children was constitutionally inadequate, and that as a result of the defendants’ unconstitutional acts or omissions, the children suffered harm. In answering these questions, the trial court provided the jury with several instructions. One of the key instructions provided the language of Youngberg concerning the professional judgment standard. In fact, this instruction set a higher bar for the plaintiffs by requiring the jury to find “that the defendants persistently and substantially departed from the exercise of professional judgment standard or practice by engaging in a widespread pattern or practice of depriving the plaintiff class of the rights secured under the Constitution …”(emphasis added).39 Although the jury clearly had to find that the defendants harmed children in foster care, and also apply the Youngberg standard of care, the state supreme court held that the instructions were in error because they “confounded the substantive due process right with the standard of culpability to be applied.” The court then stated how the questions to the jury should have been phrased

[T]he jury should have been asked first to determine whether specific decisions of DSHS violated the foster children’s right to be free from unreasonable risk of harm or violated their right to reasonable safety. Second, the jury should have been asked if the plaintiffs had established that the decisions substantially departed from accepted professional judgment, standards or practice.40

In a footnote at the end of its discussion of the jury instructions, the Court then added further instructions to the trial court indicating that “[b]ecause relief at this point is solely equitable, the parties are not entitled to a jury trial.”41 Further, since some of the evidentiary issues that the trial judge decided “will undoubtedly resurface on remand,” the Supreme Court also addressed them, albeit briefly.42

Professional Standards

At the trial, the plaintiffs argued that the state’s conduct must be measured by Youngberg’s professional judgment standard, and that the jury should know what professional standards apply to the care of foster children. The trial judge permitted the plaintiffs to admit evidence of these standards. On appeal, the state argued that it was an error to allow the jury to apply these standards. The state did not challenge the admission of standards promulgated by the Council on Accreditation for Children and Family Services.43

Excerpts from several standards of the Child Welfare League of America (CWLA) were introduced, including  tandards for Health Care Services for Children in Out of Home Care, and Standards of Excellence for Foster Family Care Services.44 Representatives of many public child welfare agencies were members of the committees that developed these standards.45 Washington DSHS staff served on the committee that wrote the out of home standards.46 In addition, there was testimony about standards adopted by the American Academy of Pediatrics (AAP).

Apparently ignoring the length of time that had elapsed since the CWLA standards were adopted – seven years before the trial for the foster care standards, and fourteen years for the health care standards – the Braam court found that the trial court had abused its discretion in admitting both sets of the standards. Without conducting any independent analysis of the standards, it concluded that they were merely “aspirational goals,” and therefore not relevant to a determination that the defendants’ care of foster children was constitutionally inadequate.47

In its decision concerning the introduction of the CWLA and AAP standards, the court found that it was an abuse of discretion to allow the jury to consider them “based upon the record before us.”48 This language, read in context with another part of the Court’s opinion concerning the practices and standards followed by other states, strongly suggests that on re-trial such standards may be properly admitted, if the proper foundation is provided.49

Other States’ Performances, Standards, and Practices

At the trial, the state sought to introduce statistical data comparing Washington’s child welfare program with those in other states. The plaintiffs objected to this comparison among states as irrelevant to any determination that Washington’s foster care program was constitutionally inadequate. The trial court upheld the exclusion of this data.50

The Washington Supreme Court then clarified that “evidence of actual professional standards followed by other states is properly admissible.”51 On remand, this would seem to offer little consolation to the defendants, since a recently completed federal review of Washington’s child welfare program confirmed that Washington’s foster care program is deficient in many areas.52

Fiscal Constraints

Both parties agree that improvements in Washington’s foster care system will require additional resources. The Washington Supreme Court acknowledged that the defendants estimated the cost of such reforms at more than $60 million.53 The defendants sought to use lack of funding from the legislature as a defense. In one of the most important rulings in the case, the state supreme court upheld the trial court’s exclusion of this defense,and held “[l]ack of funding does not excuse a violation of the constitution and this court can order expenditures, if necessary, to enforce constitutional mandates.”54

State and Federal Statutory Claims

With little discussion or explanation, the state supreme court affirmed the trial judge’s dismissal of the children’s claims under federal and state statutes. The children argued they had causes of action under four state statutes. The statutes supporting these claims required foster parent pre-service training;55 the provision of information about the child and his or her family with foster caregivers;56 the evaluation of an individual child’s needs within thirty days of entering placement;57 and the development of programs for the care of foster children that “effectively address the educational, physical, emotional, mental, and medical needs of children and youth.”58

In affirming the dismissal of the Braam children’s claim under federal statutes, the Washington Supreme Court largely relied upon the United States Supreme Court’s decision in Gonzaga v. Doe.59 Since the federal statutes that the children sought to enforce are “spending clause legislation,” and the “Supreme Court has recently been highly suspicious” that such statutes create enforceable rights, the court refused to recognize a cause of action under 42 U.S.C §§671(a)(16) and 675 (1).60

Contrary to the Washington Supreme Court’s decision, the weight of authority in the federal courts has upheld the enforceability of the federal statutes.61 Since Gonzaga was decided, at least two federal courts have affirmed the enforceability of the statutes.62

Bill Grimm, co-counsel in the Braam case, is a senior attorney with the National Center for Youth Law, specializing in Child Welfare. He has been lead counsel in several large cases seeking to reform child welfare systems, including in Baltimore,Arkansas and Utah.


1Cory is not her real name. Her name has been changed to protect her privacy.
2Braam ex rel Braam v State ofWashington,81 P.3d 851 (Wash. 2003); Bill Grimm, Jury Finds Washington Foster Care System Unconstitutional, Youth Law News (Jan.-Feb. 2002).
3Exhibit 171 introduced at trial was a list of the names of children in foster care and the number of placements they experienced since DSHS assumed custody. The last names were deleted before the exhibit was admitted and shown to the jury.
4Braam, 81 P.3d at 856.
5Braam, 81 P.3d at 857. Later in the opinion,
the court added
...The state owes these children more than benign indifference and must affirmatively take reasonable steps to provide for their care and safety. 81 P.3d at 859. 6Braam, 81 P.3d at 856
7Doe v. New York City Dep’t of Social Serv’s., 649 F.2d 134, 141-142 (2nd Cir. 1981)(sexual and physical abuse by foster father); Taylor ex rel Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987)(foster child beaten in foster home); Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th Cir. 1990) cert denied 498 U.S. 867 (1990)(sexual abuse in foster home); Burton v. Richmond, 276 F.3d 973 (8th Cir. 2002)(physical and sexual abuse of foster children); T.M. v. Carson, 93 F. Supp.2d 1179 (D.WY 2000)(sexual abuse); Doe v. Johnson, 52 F.3d 1448 (sexual and physical abuse).
8Plaintiffs did claim that sexually aggressive youth (SAY) were placed in the same homes as other younger, vulnerable foster children thus exposing these children to harm or risk of harm. Defendants conceded that this practice existed and that moving SAY to alternative placements (e.g. group homes) would be costly. See, e.g., Declaration of Virginia B. Heim in Support of Defendants’ Opposition to Plaintiffs’ Proposed Opinion and Injunction, p.3 estimating the cost of moving 10% of SAY from foster homes to group care was $216,000 annually.
9Braam, 81 P.3d at 857.
10Braam, 81 P.3d at 854.
12 929 F.Supp. 662 (S.D. N.Y. 1996).
13Marisol A., 929 F.Supp. at 675.
14149 F. Supp. 2d 941 (M.D.Tenn. 2000).
15 Youngberg, 102 S. Ct.
16 Brian A., 149 F. Supp.2d at 952-954. Plaintiffs list of substantive due process rights included the right to protection form harm, right not to be harmed while in state custody, right not to be deprived of their liberty unnecessarily by retention in state custody, right to be placed in the least restrictive, most appropriate family like setting while in state custody, right to treatment consistent with the purposes of the state’s assumption of custody, right to receive care, treatment and services consistent with accepted, reasonable professional judgment, and right to protection from state-created dangers. Brian A.149 F. Supp.2d at 953.
17Braam, 81  P.3d at 857 citing County of Sacramento v .Lewis, 523 U.S. 833, 849 (1998).
18A footnote from the Court’s opinion in DeShaney v.Winnebago County Dep’t of Social Serv’s., 109 S. Ct. 998 (1989) has often been cited in those cases upholding the substantive due process rights of foster children.

Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.

Deshaney, 489 U.S. at 109 S. Ct. at 1006 n. 9.

Several decisions upholding substantive due process claims on behalf of foster children have also looked to Jackson v. Indiana, 92 S.Ct. 1845(1972). Youngberg, in fact, cites to Jackson at several points. See,e.g.,Youngberg,
102 S.Ct. at 2460 n.27, 2462. The concurring opinion in Youngberg points out that the unanimous decision in Jackson “suggested a constitutional standard for evaluating the conditions of a civilly committed person’s confinement.” Youngberg, 102 S.Ct. at 2463. That standard is

At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. Jackson, 92 S.Ct. at 1858.

1997 S.Ct. 285 (1976).
20102 S.Ct. 2452 (1982).
21Deliberate indifference could be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle 97 S.Ct. at 291.
22Lower court foster care cases substantive due process analyses primarily rely upon the language in Estelle, explaining that prison officials have a duty to provide medical care because a prisoner “cannot by reason of the deprivation of his liberty, care for himself” and “must rely on prison authorities to treat his medical needs.” Estelle, 97 S.Ct. at 290-291. Children in foster care are similarly deprived of their liberty and due to their young age and removal from the parents who would normally be expected to meet their needs, forced to rely upon state officials to meet their need for medical care and protection. Yvonne L. By and Through Lewis v. New Mexico Dep’t of Human Serv’s., 959 F.2d 883 (10th Circuit 1992); Burton v. Richmond, 276 F.3d 973 (8th Cir. 2002); Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D. N.Y. 1996).
23Estelle, 97 S.Ct. at 291.
24Youngberg, 102 S.Ct. at 2454.
25Youngberg, 102 S.Ct. at 2455.
26Youngberg, 102 S.Ct. 2456.
27Youngberg, 102 S.Ct. at 2457.
29Youngberg, 102 S.Ct. at 2458.As for claims of freedom from bodily restraint, it held that ‘this interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.” Youngberg 102 S.Ct. at 2458.
30Youngberg, 102 S.Ct. at 2458.
31Youngberg, 102 S.Ct. at 2459, n.23.
32Youngberg, 102 S.Ct. 2459.
33Youngberg, 102 S.Ct. at 2460. 34Youngberg, 102 S.Ct. at 2462.
35Braam, 81 P.3d at 859-860.
36Braam, 81 P.3d at 859.
37Braam, 81 P.3d at 858-859.
38Defendants’ other theories suggested that children in foster care were so severely harmed by their parents’ acts or omissions that they should not be held accountable for improving the lives of these children. They also blamed the children themselves and foster parents for breakdowns in children’s placements.
39Braam, 81 P.3d at 860.
40Braam, 81 P.3d at 860.
40Braam, 81 P.3d at 860.
41Braam, 81 P.3d at 860, n.6. Despite this admonition to the trial court, the defendants recently filed a motion for a jury trial.
42Braam, 81 P.3d at 860.
43In 2001, the Washington legislature required that the state agency “undertake the process of accreditation [of its children’s services programs] with the goal of completion by July 2006. RCW 13.74.013 & 13.74.017. Seven of the state’s forty-two local offices have received accreditation from the Council on Accreditation.


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