A federal class-action lawsuit filed April 16 on behalf of all current and future foster children in Oregon demands the governor and leaders of the Oregon Department of Human Services be held accountable for problems within the state’s foster care system.
The lead plaintiffs, 10 current foster children and their representatives, claim problems “permeate every part of the Oregon foster care system.” The complaint argues the state “has been, and continues to be a constitutionally inadequate parent, revictimizing already vulnerable and innocent children.”
The lawsuit names Gov. Kate Brown; the director of the Oregon Department of Human Services, Fairborz Pakseresht; the director of Child Welfare, Marilyn Jones; and the Oregon Department of Human Services as defendants.
The plaintiffs, represented by Disability Rights Oregon, A Better Childhood Inc. and the law firm of Davis Wright Tremaine, aren’t seeking damages, but rather, a transformation of the entire foster system to ensure that Oregon children receive the treatment and care they’re afforded under the law.
“There has to be a solution to this problem,” said Marcia Robinson Lowry, the executive director of A Better Childhood Inc., a national watchdog organization and co-counsel in the lawsuit. “These kids have needs, and those needs have to be met. The state has an obligation to do that within the law, which we don’t believe they’re doing.”
THEIR STORIES: Testimonies from foster youths suing Oregon
The plaintiffs claim overworked caseworkers are making “critical judgments while struggling to keep up with their daily tasks” for the approximately 8,000 children in state care. They said children are being placed in foster homes or other situations based on “availability rather than suitability,” which results in frequent moves, while “medical, mental health and social needs often remain unknown and unmet.”
The complaint states, “the Department of Human Services (“DHS”), has failed to address the desperate need for an additional number and range of appropriate placements and necessary services, despite the fact that this problem has been known and growing for years.”
“There are so many kids who could go on to much better lives than they’re having,” said Robinson Lowry. “But instead, they’re having their lives ruined by the foster care system. This system is not making kids better; it’s making them worse.”
Plaintiffs Wyatt B., age 3, and Noah F., age 1, have cycled through more than a dozen homes, sometimes more than one within a 24-hour period, the complaint states. Within their first period in care, their representatives said the boys had two case workers, two permanency workers and two supervisors, “compounding the confusion not only for the children but for the adults involved as well,” according to the complaint.
Attorneys said a supervisor discovered one set of foster parents were accidentally giving Noah heart medication prescribed to his older brother, resulting in a two-night hospitalization for Noah.
“(T)he foster parents had been giving the infant not only medications that were not necessary, but ones intended for a much larger child,” states the complaint. “In addition, Wyatt had not been receiving the medications necessary to manage his congenital heart defect.”
Plaintiffs claim that while Noah was taken to the hospital, his biological mother wasn’t told about the mix-up and his brother Wyatt was never taken to his cardiologist or the hospital to check for adverse effects from being off his medication. He remained at the foster home where the mistake occurred.
“It’s hard to imagine that in a civilized society, and in a progressive state, the agency is running so poorly that stories like these can be true,” said Robinson Lowry.
The complaint states that children with even relatively mild behavior problems are not being placed in family homes with necessary supports and services, but rather sent out of state to inappropriate institutions and for-profit congregate programs which do not address their needs.
Fifteen-year-old plaintiff Bernard C. has been residing at River Rock, a locked shelter located in a section of Douglas County’s juvenile detention center. The complaint claims when children arrive, they are strip-searched and housed in cells with furnishings that match the delinquency facility.
“The children take daily cold showers at scheduled times. At night children are secured in old delinquency cells where the doors are closed remotely and simultaneously. The doors are locked preventing children from using the bathroom at night and are controlled from the delinquency control center,” according to the complaint.
As a transgender male, Bernard had been taking prescription testosterone for more than two years, but since arriving at River Rock more than a month ago, he said he has only received one injection. The plaintiff said he also has not been receiving his anti-depressant medication.
“Bernard has a right to that testosterone, but it’s being denied to him,” said attorney Paul Southwick, from co-counsel Davis Wright Tremaine.
“While there are many rights on the books, many are not being enforced – or those rights are not being experienced by the youth, I believe, partly because of the shortage of case workers,” he said.
Southwick said LGBTQ+ and questioning children are being deprived of safe and stable placements, when many have already experienced violence or neglect at their own homes.
“When these youth are taken out of their homes, or taken out when they are younger, they can experience a whole new round of rejection,” said Southwick.
The complaint contends that queer and trans youth “face the dangerous choice of either staying in the closet or risking the termination of their placements.”
It states that the lack of foster homes and a previous lawsuit in Oregon seeking to regulate the placement of children in hotels has led DHS to increase the number of children sent to repurposed lockup facilities, out-of-state treatment centers and even local homeless shelters.
After being brought to the emergency room twice for threatening suicide and cutting her arm with a razor, hospital staff recommended 16-year-old Naomi B. be placed in foster care. After DHS couldn’t locate a home for her, the complaint states that her father gave DHS permission to place Naomi in the Jackson Street homeless youth shelter. She has changed placements multiple times, but is now back at the homeless shelter for the seventh time since November.
Earlier this year, she was placed in the Youth Inspiration Program (YIP,) which is located in a section of a juvenile detention facility in Klamath Falls. According to the complaint, YIP is described as an intensive program for girls at risk of going into a state youth correctional facility.
“The foster children placed there, like Naomi, share an exercise yard with the other juvenile delinquency facilities. The outdoor exercise yard is approximately 30 feet by 30 feet, entirely concrete, and enclosed by a 20-foot-tall chain-link fence with quills of barbed wire along the top,” states the complaint.
Attorney Chris Shank, with co-counsel Disability Rights Oregon, visited Naomi at YIP. “To call it a rehab facility is a stretch,” she said. “There were no windows. It’s a locked facility; you have to buzz to get out. It felt like a jail.”
The complaint states Naomi has been “deprived of necessary and appropriate services and treatment to ensure equal access to a stable, family-like foster placement and for an appropriate placement in the least restrictive environments.”
Shank said that while in the Youth Inspiration Program, Naomi was required to attend substance abuse and sex abuse discussion groups, even though she didn’t have a history of substance or sex abuse.
“So kids get into this higher level of care, but then can’t get out of that higher level of care and into a more appropriate placement,” said Shank.
17-year-old plaintiff Norman N. has spent the last 10 months at St. Mary’s Home for Boys as part of a second stay at the facility. He estimated he has been through 50 placements in foster homes, hotel rooms and at least four facilities, including a placement at the Northwest Children’s Home in Idaho.
He described the program in Idaho as chaotic. “Children fought and staff would not intervene,” the complaint states. “Staff routinely placed children in restraints after tackling them and taking them forcibly to the ground. Staff would also drag youth into locked seclusion rooms.”
“There is an urgency here,” said Southwick. “We’re talking about real kids experiencing these real issues. These are not atypical stories.”
The complaint claims individual lawsuits against DHS, including eight current personal injury lawsuits filed by current and former foster youth, have cost the state more than $39 million dollars since 2006.
It states that DHS is spending more money at these residential care facilities, due to its inability to recruit additional foster parents, particularly those willing to care of children with disabilities. The complaint cites that more than 50% of children currently in Oregon foster care experience physical, intellectual, cognitive or mental health disabilities, and current foster parents aren’t getting adequate support and training to meet the needs of most children.
One former foster family for sibling plaintiffs Kylie R., age 7, and Alex R., age 8, said they weren’t even told the children’s last names or given their Oregon Health Plan cards when DHS dropped off the children on a Friday afternoon.
“Kylie had tantrums through the weekend, and DHS did not respond to the foster parents’ multiple frantic phone calls for advice on how to address them,” states the complaint. “As a result, on Sunday afternoon, the foster parents took Kylie to the hospital because they were concerned that she would hurt herself. However, the foster parents were unable to complete the intake process because they did not know the children’s last names and could not reach anyone at DHS.”
The parents also couldn’t treat the children’s lice, since they couldn’t get a prescription for lice treatment from a primary care physician.
“Who is in charge of being responsible for that case?” asked Robinson Lowry. “It doesn’t appear like anybody. These kids might have well been out in the woods on their own with regard for the amount of supervision and care they’re getting.
“Some of these foster parents might be fine, fine people,” she said, “but they can’t deal with a situation where they don’t know the kid’s last name. The kid’s hair is infested with lice and they can’t get the appropriate treatment. That little girl had to have her head shaved.”
The complaint states that Oregon’s past actions and inactions “constitute deliberate indifference to the harm, risk of harm, and violations of legal rights suffered by the named Plaintiffs and the class and sub-classes they represent.”
The lawsuit states approximately 1,300 foster children in Oregon are at least 16 years old and should be preparing for independent living as they near the age of 18, but many aren’t getting the transitional services they need.
“Many of the kids who are aging out of the system end up homeless,” said Shank. “We want to make sure kids in the 14-to-18-to-21 range are getting the skills and support they need to have stable housing before they leave the system.
“There are just so many heart-breaking stories,” she said. “My hope is that won’t be true at the end of this.”
Note: The children’s names used in this story and the complaint are pseudonyms, but their actual first and last initials are accurate.
Email Executive Editor Joanne Zuhl at joanne@streetroots.org. Follow her on Twitter @jozuhl.