Court affirms foster kids have right to be safe while in state custody

By HEATH FOSTER
SEATTLE POST-INTELLIGENCER REPORTER

Olympia, WA - 12/19/03 - In a long-awaited ruling, the state Supreme Court unanimously decided yesterday that Washington's 10,000 foster children have a fundamental, constitutional right to be kept safe from harm when they are in the state's care.

But the high court sent the question of whether the state has done enough to protect and mend the broken lives of foster children back for a new trial, because of legal errors made during a seven-week jury trial in Whatcom County two years ago.

After a jury there found that the state Department of Social and Health Services had been violating children's rights, the social services agency was ordered to make sweeping reforms to reduce the emotional damage many children suffer as they are shuffled through the foster care system.

Superior Court Judge David Nichols wanted DSHS to stop bouncing children through multiple foster homes, cease its practice of separating brothers and sisters, alleviate the chronic shortage of foster homes, and treat children's mental illnesses and behavior problems thoroughly.

But DSHS appealed, arguing that the judge's reforms were poorly thought out and could cost an additional $60 million a year in taxpayer dollars to implement.

Lawyers on both sides of the complex case viewed yesterday's Supreme Court ruling as cause for celebration.

For now, the ruling frees DSHS from court intervention in its troubled child welfare system. Agency Secretary Dennis Braddock was elated.

"I am tickled that the injunction is gone, because it would have been terrible for the kids of this state," he said.

But the multilayered ruling opens the door for future court intervention by setting a high legal standard for judging how well DSHS is meeting the basic physical and mental health needs of the foster children in its care.

The Supreme Court established that budget shortfalls are not a legitimate excuse for denying services to foster children, warning that in the future, "this court can order expenditures, if necessary, to enforce" their constitutional rights.

And perhaps most significant, the court's nine justices agreed that foster kids have a fundamental, constitutional right to "be free from unreasonable risk of harm, including a risk flowing from a lack of basic services, and a right to reasonable safety."

Tim Farris, one of the attorneys representing Jessica Braam and 12 other children who claimed that they suffered emotional damage in the foster care system, called the ruling historic.

"This will inspire child advocates around the country that children in foster care have a constitutional right to be free from harm and (will) encourage similar lawsuits," he predicted.

Former state Supreme Court Justice Phil Talmadge said standards the court established could well be expanded to apply to state-funded care of mentally ill and developmentally disabled people.

"This is a very powerful statement by the court in an area that has been really unclear," said Talmadge, who is a candidate for governor. "It will be a major tool for advocates for human services."

Farris and lawyers from Columbia Legal Services and the non-profit National Center for Youth Law, who teamed up on the case, said they were eager to go before Nichols for a retrial.

"We would go back next week if we could," Farris said. "We are going back before a judge who has already found that children are being harmed by the state's practices. He is determined to protect children."

One reason the attorneys for foster children in the case are optimistic is that the high court rejected the standards DSHS proposed for judging whether it is violating foster children's constitutional rights.

DSHS argued that it should be found in violation only if its care of children "shocks the conscience or were deliberately indifferent to their rights" -- the legal standard applied to the treatment of criminal defendants.

The high court, however, decided that foster kids deserve a higher, easier-to-prove standard amounting to a "substantial departure from accepted professional judgment, standards or practice" by DSHS.

"Foster children, because of circumstances far beyond their control, have been removed from their parents by the state for their own best interest," wrote Justice Tom Chambers in the unanimous decision.

"More often these children are victims, not perpetrators. Foster children need both care and protection. The state owes these children more than benign indifference and must affirmatively take reasonable steps to provide for their care and safety."

In sending the case back for retrial, the high court said Nichols had erred in the instructions he gave to the jury in the case. The court said the jury was not specifically asked whether DSHS had violated the children's constitutional right to be kept safe from harm and also had not asked whether DSHS' actions were a significant departure from accepted social work standards.

The jury that heard the case last year did find that the children's rights had been violated. And it found that children were being harmed by multiple foster care placements, poor training of foster parents, inadequate mental health care and unsafe placements in DSHS offices and in homes with other, violent children. Those findings led Nichols to issue his injunction ordering the state to make sweeping changes.

Under the Supreme Court's ruling, the second trial must be held before Nichols and not before a jury.

Yesterday, Braddock said he was confident that his agency would prevail at a second trial. And he said children will be better served by the voluntary reforms already under way in response to an ongoing federal assessment of Washington's child welfare system.

"Our system needs improvement," he said, "but it is not broken."


ON THE WEB

To read the state Supreme Court's decision in the Jessica Braam et al v. State of Washington case online, go to: www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=725985MAJ

 

RELATED STORY:

Foster-care ruling reversed - Justices say local judge erred in trial over kids' safety
John Stark, The Bellingham Herald

In a unanimous opinion, the Washington Supreme Court has overturned Whatcom Superior Court Judge David Nichols' two-year-old order requiring the state to make sweeping, expensive changes to its foster-care system to reduce emotional damage caused by shifting children from home to home.

But Thursday's ruling does not end the five-year-old case. Instead, it may set the stage for a new trial in Nichols' courtroom.

State officials hailed the Supreme Court ruling as a victory, but the plaintiffs who sued the state to force improvements in foster-care system said the judges upheld key portions of their legal arguments that make it likely that they will prevail if the case is tried a second time.

In explaining the decision to overturn Nichols' ruling, the court's opinion said the Whatcom County judge erred in the legal language used in jury instructions. Nichols should also have allowed the state to introduce evidence about the foster-care procedures followed in other states, the court's opinion said, and should not have allowed the jury to hear testimony about the ideal standards of care for foster children espoused by a child advocacy group and the American Academy of Pediatrics.

Bellingham attorney Tim Farris, who filed the lawsuit against the state in 1998, said he will seek a new trial as soon as possible unless the state agrees to settle. The new trial could occur as soon as three or four months from now, he said.

Farris said he was confident that plaintiffs would prevail in a retrial, since Judge Nichols has already made it clear that he is willing to use his powers to force the state to improve the foster care system. The Supreme Court's opinion makes it clear that Nichols has that power, and that the state cannot avoid its legal responsibilities to foster children by pleading lack of money, Farris said.

He pointed to a sentence in the court's opinion which reads, "Lack of funds does not excuse a violation of the constitution, and this (Nichols') court can order expenditures, if necessary, to enforce constitutional mandates.

"Foster children need both care and protection," Justice Tom Chambers wrote in the unanimous opinion published Thursday. "The state owes these children more than benign indifference and must affirmatively take reasonable steps to provide for their care and safety."

The opinion also states that "foster children have substantive due process rights to be free of unreasonable risk of harm, and a right to reasonable safety."

Farris called the high court's opinion "the most concise and eloquent statement about the rights of children in foster care of any court in the history of the United States."

But Farris also acknowledged that if the case is retried, and plaintiffs prevail again, the state could appeal once more.

Joining Farris in pressing the plaintiffs' case were the National Center for Youth Law in California, and Columbia Legal Services of Seattle.

Farris's original lawsuit against the state Department of Social and Health Services argued that by shuttling foster children from home to home and by failing to provide them with adequate mental health services, the state was to blame for permanent emotional damage to the children.

In a trial in Whatcom County Superior Court two years ago, jurors agreed, and found that state treatment of foster children was a breach of the children's rights under the U.S. Constitution. Based on the jury's verdict, Nichols then issued a sweeping injunction ordering DSHS to take steps to improve the system, including:

Increase the number of foster homes by 500, to about 6,800.

Provide physical and mental-health assessments within 30 days of each child's entry into foster care, and provide treatment for any problems.

Place siblings together, unless one sibling poses a danger to another.

State officials said the cost of complying with Nichols' order would be about $60 million a year, and they got a stay of that order while the case worked its way through the appeals process.

Senior Assistant Attorney General Bill Williams, who argued the state's case, said the Supreme Court's rulings on admissible evidence and on jury instructions would make it difficult for Farris and his clients to prevail in a new trial. He said the plaintiffs do not have evidence to show that children were harmed, or that the state's treatment of foster children "substantially departed from accepted professional judgment, standards or practice," in the court's words that spell out their view of the proper language for instructing the jury in the case.

He said the state's legal strategy has not been decided, but it is likely that the state will ask Nichols to dismiss the case rather than preside over a new trial.

In a statement, DSHS officials said the court's ruling would not change their commitment to improve the foster-care system.

"The plaintiffs raised many valid concerns about our child-welfare system that have received serious consideration by the department," said Uma Ahluwalia, assistant secretary for the DSHS Children's Administration, which manages foster care. "We do share the common goal of wanting the best services for Washington's children and families.

Ahluwalia told The Associated Press that her department applauded the decision.

"It affirms our belief that the department is on the right track, making the health and safety of children our first priority," Ahluwalia said.

She added that many aspects of Nichols' injunction are being addressed through an ongoing review of her agency's performance that is scheduled to be complete in January, to be followed by an improvement plan next April.

Reach John Stark at 715-2274 or john.stark@bellinghamherald.com. The Associated Press contributed to this report.

 

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