SALEM — A national advocacy group filed a federal lawsuit against the state of Oregon early Tuesday morning, seeking to force leaders to fix deep-seated problems in the state’s foster care system.
Lawyers for the 10 plaintiffs, who range in age from 18 months to 17 years old and are all in Oregon foster care, accuse the state of consistently violating the children’s rights guaranteed by federal laws and the U.S. Constitution.
The lawyers, who are seeking class action status so they can represent all of the approximately 8,000 children in Oregon’s foster system, point to evidence the problems are widespread and go back at least a decade.
The lawsuit paints a picture of a system that, through its dysfunction, further traumatizes children who were taken from their families on the premise that the state would better care for them. They cite numerous examples.
A 15-year-old transgender boy who the state has failed to find a supportive home and at one point, sent to an all-girls program.
A 9-year-old girl who was sent to a program in Montana where she has been drugged to “induce calming effects,” and physically restrained by up to four staff at a time.
A 17-year-old Native American boy who has lived in at least 50 different foster placements, none with tribal members, and is about to age out of the system without a stable living arrangement.
The New York City-based nonprofit A Better Childhood is bringing the lawsuit along with Disability Rights Oregon and lawyers from the firm Davis Wright Tremaine.
In an interview, A Better Childhood’s executive director Marcia Robinson Lowry said the group has been investigating Oregon’s system since last summer and was surprised to learn how bad it is. Lowry said the group has eight open cases and according to the group’s website, it has “campaigns” in six states other than Oregon and the District of Columbia.
“Little kids are moved from place to place to place to place to place and often separated from each other,” Lowry said. They subsequently “develop serious emotional problems that require treatment, which is then unavailable. This system in Oregon is, in many cases, making kids worse, instead of trying to help make them better.”
The lawsuit names as defendants Gov. Kate Brown, the Oregon Department of Human Services, agency director Fariborz Pakseresht and Child Welfare director Marilyn Jones.
The plaintiffs’ lawyers are asking the court to force Oregon to implement a long list of child welfare system improvements they say would bring the state into compliance with the Constitution and federal laws. Those improvements include hiring enough child welfare caseworkers to limit caseloads to 15 children and requiring thorough assessments of children within 30 days of the state taking custody.
For specific groups of children, the lawyers are asking the court to enforce legally mandated levels of care and protections. As an example, the lawyers ask the court to ensure that LGBTQ children are not placed in homes or programs “where a child’s sexual and gender identity or expression are viewed as immoral, undesirable, or problematic.” They are also seeking to recover their legal costs.
A central argument in the case is that Oregon violates the children’s constitutional right to due process, including by failing to protect them from harm and failing to protect children with disabilities from discrimination and unnecessary institutionalization. Oregon has also failed to protect the rights of LGBTQ children to “freedom from systemic discrimination based on sexual orientation, gender identity and gender expression,” the lawyers wrote.
Children who are aging out of Oregon’s foster care are entitled to support during the transition, but the lawyers said many are not consistently receiving those vocational, education and other services.
Roughly half of the Oregon children in foster care have a physical, mental, cognitive or intellectual disability, the plaintiffs’ lawyers wrote. That means they are entitled by the Americans with Disabilities Act to equal services — including access to stable, family-like foster care settings, something the lawyers said many foster children are not receiving.
In a press release, Disability Rights Oregon managing attorney Chris Shank said he hopes the lawsuit “will help curb the revolving door of foster placements and avoid children ending up in institutions because we’ve failed to meet their basic healthcare needs.”
Under the federal Child Welfare Act, states must provide written plans laying out how the government will meet the child’s needs and ultimately reunify them with their families or find another permanent home. Children should also be kept as close as possible to their home communities and in the least restrictive setting necessary. Lawyers for the foster children claim Oregon is failing to meet those and other mandates in the law.
To illustrate how Oregon’s child welfare problems hurt children, the lawyers detailed the histories of the 10 young plaintiffs.
The youngest are 18-month-old Noah F. and 3-year-old Wyatt B., brothers who have been through multiple foster homes and were separated, according to the lawsuit. The brothers and all other children identified in the lawsuit are referred to by pseudonyms.
Wyatt has a congenital heart defect and while the brothers were being moved between multiple foster homes, a foster parent administered Wyatt’s heart medications to his infant brother. After baby Noah was hospitalized, child welfare workers allegedly cancelled the boys’ visit with their biological mother without telling her what happened.
Kylie and Alec R. are 7- and 8-year-old siblings. They’ve been in foster care for less than two months, yet Kylie has been in five different placements and Alec in four, their lawyers wrote. Both children had lice when they entered state care and because caseworkers allegedly did not provide their health insurance information to foster parents, the children waited more than a month for treatment.
Unique L. is 9 years old and has gone through a series of foster homes and institutional programs, including most recently a program in Montana after her mother was diagnosed with “a significant mental health condition, was verbally abusive to her children and kept them out of school,” according to the lawsuit.
A year ago, Oregon child welfare leaders signed a court settlement promising to stop housing vulnerable foster children in hotels, state offices and juvenile detention centers instead of with families. Since the settlement, the state has placed dramatically more children and teens in institutional settings including repurposed juvenile jails.
Although Unique’s therapist had recommended against returning the child to her mother, state workers took her back to the mother and tried to get the case against the mother dismissed. Soon, the mother locked Unique out of the house and began leaving voicemails for professionals involved in the case, including one in which Unique could be heard in the background crying and screaming, “mommy, please don’t do this.”
Since the state sent Unique to the Montana program, she has been restrained by up to four people during tantrums and forced to take a range of medications — including an anti-epileptic although she does not have seizures — in order to chemically restrain her, the lawsuit says. She has received “little to no therapeutic” care at the program, lawyers wrote.
Simon S., 13, and his sister were first referred to the state in 2010. Since then, the state has received 35 reports of physical, sexual and neglect about the children, including that Simon had black eyes, bruises on his face and body and cut and swollen lips, all of which Simon attributed to his father, according to the lawsuit.
Staff at Simon’s school were at a loss for what more they could do when, despite reports that Simon was being sexually abused by another child at his home, state workers left Simon in the home. Simon began defecating in his pants at school in an attempt to protect himself from the other child, who was also a student. Although he began receiving therapy at school, the counselor stated, “It’s difficult to treat a child with these issues who lives in a home that is not safe, supportive and sanitary.”
Ruth T., 15, and her brother entered foster care after their mother died of an accidental drug overdose. Although children are supposed to be evaluated within 60 days of entering state care, Ruth did not receive a psychological evaluation for six months, according to the lawsuit.
State workers repeatedly failed to arrange for Ruth to receive the treatment evaluators eventually said she needed, leading to problems at school. Ultimately, the state sent her six hours away from family to a Douglas County program operated in the former Roseburg police building. After growing up in a chaotic home, the lawsuit states, Ruth has poor social skills and operates “at about a 6-year-old (level), if not younger, mentally.”
State workers ultimately told Ruth’s court-appointed attorney, although her recommended treatment plan had never been implemented, there was no one in Oregon willing to care for her so she had to be sent to a program in Iowa for girls who have committed crimes, according to the lawsuit.
Bernard C., 15, is transgender and the trauma he experienced — likely while living with family — is manifesting in occasional nightmares, depression and anger. According to the lawsuit, state workers have failed to arrange for Bernard to receive recommended therapy and find him the “highly supportive, predictable, and loving home environment” that a psychologist noted would allow him to bond with a care provider and experience long-term support and role modeling.
Instead, the state cycled Bernard through at least a dozen foster homes and seven institutional programs, including a program for girls called Wildflowers even though he was transgender. He currently lives in a wing of Douglas County’s juvenile jail that has been converted into a behavioral rehabilitation program, where the lawsuit says children endure strip searches, doors to the rooms are locked at night, children attend an alternative school for a few hours a day and Bernard’s medical treatment has been disrupted.
Klamath Falls program
In an example cited from Klamath County, Oregon child welfare officials are pulling foster children from a Klamath Falls residential program located in a county juvenile jail, following concerns that the girls did not have free access to tampons. Girls recently were given access to three free tampons at a time, but only if they turned over their used hygiene products to staff.
Naomi B., 16, currently lives at the Jackson Street Homeless Shelter. According to the lawsuit, Naomi was removed from her from father’s care in November so that she could receive therapy for depression and agoraphobia that he refused to allow. Yet as Naomi cycled between the homeless shelter and two residential programs, she never received that mental health treatment, the lawyers wrote.
In January, Naomi was moved to a Klamath County residential program designed for girls at risk of entering the juvenile justice system. As The Oregonian/OregonLive has reported, the program also houses girls in the custody of the Oregon Youth Authority for committing crimes and as of last fall, had received the endorsement of Gov. Kate Brown to receive $12 million in funding to expand.
At the Klamath Falls facility, Naomi and other girls were periodically locked out of their rooms for searches and Naomi was unable to maintain her education given the sparse 1.5 to 2.5 hours of online education provided each day, the lawsuit alleges.
Norman N., 17, has been in and out of foster care since 2005 and currently lives at the St. Mary’s Home for Boys in Beaverton.
Norman’s long journey through Oregon’s foster system, during which he moved at least 50 times, illustrates how trauma and lack of stability can compound inside that system.
After Norman was removed from his father again in 2012, “he was placed in a foster home with his two younger siblings who had never been in foster care before,” the lawyers wrote. “Norman felt very protective of them and did not trust the strangers that were now responsible for their care. Scared, Norman had a behavior outburst and was removed from the foster home and separated from his brothers.”
Despite identifying as a member of the Pokagon Band of Potawatomi, Norman has never lived with any foster family who is a tribal member. He wants to grow his hair long in accordance with Native American tradition, but St. Mary’s rules require boys to keep their hair short, the lawsuit says. Child welfare workers have begun working with Norman’s mother to be a resource when he ages out of foster care. According to the lawsuit, she is still struggling with substance abuse and lacks stable housing.
Originally published by the Herald and News.