Key foster care case for state justices - Verdict on reforms will have 'huge national implications in pinball lives children suffer'



The question of how far Washington state should go in mending the shattered lives of thousands of foster children will reach the hands of the state Supreme Court today.

In a case being closely watched nationally, the nine justices are being asked to weigh in on the extent of constitutional protections afforded to children in foster care.

"This case has huge national implications in the pinball lives that children suffer upon entering foster care not only in Washington, but elsewhere," said Bill Grimm, an attorney for the National Center For Youth Law in Oakland, Calif.

The case is an appeal of a sweeping ruling by a Whatcom County Superior Court judge ordering the state Department of Social and Health Services to make expensive reforms to reduce the emotional damage many children suffer as they are shuffled through the foster care system.

If the ruling is upheld by the high court, the state will have to find the resources to prevent brothers and sisters from being separated, alleviate the chronic shortage of foster homes, protect children from being bounced repeatedly from home to home, and diagnose and treat children's mental illnesses and behavior problems soon after they are placed in care.

In a stance that has puzzled many child advocates, DSHS has bitterly fought the Superior Court order, arguing that the judge is illegally interfering in the department's good-faith efforts to improve a child welfare system that is already among the nation's better ones.

DSHS Secretary Dennis Braddock said that if the state didn't challenge the ruling, it would be putting the fate of Washington's 10,515 foster children in the hands of a judge "who has very little experience or knowledge of the issues."

And if the reforms are upheld by the Supreme Court, Braddock said there is no way a Legislature facing a $2 billion deficit will come up with new money to pay for them. DSHS would have no choice but to slash services for the elderly, the disabled and the troubled parents of foster children themselves.

"We will end up running pillar to post trying to satisfy the judge without improving the lives of children," Braddock said.

Many child advocates are troubled by DSHS' fierce resistance to the reforms, given that the agency's own social workers testified about the need for those reforms during the seven-week Whatcom County trial in the class-action lawsuit brought on the behalf of foster kids who were repeatedly moved.

"What is really quite bizarre is that these are the very changes that DSHS' own people have been saying need to happen," said Linda Stone, director of the Children's Alliance, a statewide advocacy group.

In its amicus (friend of the court) brief, the alliance takes DSHS to task for being too cynical about change.

The state argues in its brief that "even the most dedicated advocates of foster children are not so naïve as to fashion an order aimed at 'fixing' the entire child welfare system. The system is not perfect, nor will it ever be, and a trial court's injunction will not make it so."

In response, Children's Alliance attorneys say DSHS has continued to separate siblings and bounce them from home to home despite evidence of the harm it causes, and the Legislature has chosen to leave the system underfinanced.

"Judicial intervention is the last hope for these children, and the many thousands of children who will follow in their footsteps," the attorneys conclude.

In about 26 states, foster care systems are operating under some form of consent decree, according to Tim Farris, the attorney who initially brought the suit. Many of those decrees were entered into without a trial, but DSHS pushed for the facts of this case to be put to a jury.

After deliberating for less than a day, the Whatcom County jury found last December that the state had violated the constitutional rights of foster kids.

The judge in the case, David Nichols, asked the state to help him hammer out solutions in an order. The state refused, Braddock said, because Nichols' ideas on the subject were "bizarre."

Nichols proceeded with help from child advocates and attorneys for the foster kids. In a May order, he called for dramatic improvements, including the creation of 500 new foster homes in the space of a year. Among the other highlights of Nichols' order:

The state must stop placing children in homes with other kids who have violent histories.

The state must provide physical and mental health assessments of children within 30 days of entering foster care.

Siblings should stay together unless they pose a danger to each other.

Children who are moved to multiple foster homes must be guaranteed that they can at least stay in the same school.

Foster parents must get far more extensive training and support to deal with the emotionally damaged children they take in.

Grimm, a member of the team of attorneys representing the children, said the most revolutionary thing about Nichols' position was that he held that a foster child is guaranteed at least as much protection under the law as a person civilly committed into a state psychiatric facility.

What's more, the high court would be making a "significant departure" from what the U.S. Supreme Court and the state Supreme Court have said are required under the 14th Amendment of the U.S. Constitution, said Bill Williams, the assistant state attorney general arguing the state's case.

The amendment says no state can "deprive any person of life, liberty, or property, without due process of law."

Amy Anderson, who lived in 34 foster homes, group homes and shelters during her 14 years in the system, said she is praying the justices mandate change.

Now 21 and married, Anderson was one of the 13 original foster children represented in the suit. She was taken from her parents at age 3 because of sexual abuse and was never adopted. She said her sense of worthlessness and alienation grew more intense as the years passed, and she developed attachment disorder, attention deficit disorder and a long list of behavioral problems.

Years of counseling and a loving husband have helped her become more stable and confident. But now that she is pregnant, she worries often about whether she'll be a good mother.

"I really want to be the ideal mom, and I am scared," she said. "I want to give my child all the things I didn't get from my parents and foster parents."

Attorneys in the case are hopeful the high court will rule in early 2003.


For more information about foster care in Washington state, visit the Seattle Post-Intelligencer's investigation "Kids in Crisis: The Foster-Care Shortage" at


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