Oregon foster care class action lawsuit moving forward

Oregon and its child welfare system have been in and out of court since 2019, defending against a class action lawsuit on behalf of every child in foster care. The national advocacy group A Better Childhood and Disability Rights Oregon are pushing for adequate facilities and support and an end to the trauma they say kids suffer in state custody. Similar class action lawsuits have been brought in other states, including Tennessee, which implemented reforms following a settlement that resulted in improved outcomes for the children and youth in its care. A trial date is set for May in the Oregon case. We’ll get an update from the lead attorney in the case and the director of A Better Childhood, Marcia Robinson Lowry.

Note: The following transcript was created by a computer and edited by a volunteer.

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Oregon and its child welfare system have been in and out of court since 2019, defending against a class action lawsuit on behalf of every child in foster care in the state. The case was brought by Disability Rights Oregon, and the national advocacy group, A Better Childhood.

They’re pushing for adequate facilities and supports, and an end to the trauma they say kids suffer in state custody. Similar suits have been brought in other states including in Tennessee, where a settlement led to reforms that resulted in improved outcomes for young people. A trial date is set for May in Oregon’s case. Oregon’s Department of Human Services told us they cannot provide comment on this ongoing litigation, but Marcia Robinson Lowry is with us. She is the lead attorney in the case and the director of A Better Childhood. Welcome to the show.

Marcia Robinson Lowry: Good afternoon.

Miller: Good afternoon to you. What exactly led you to file this suit in 2019, on behalf of all foster children in the state?

Lowry: We had learned from talking to advocates in the state and talking to people who represented the children in the state, that there were serious problems in the state and the state was not, in fact, addressing the problem. The more we dug into it, the more we looked at data, the more we heard heartbreaking childrens’ stories, the more convinced we were that we needed to organize a lawsuit in this state. And unfortunately, the lawsuit continues without resolution, but it is going to trial on May 13th.

Miller: We’ll get to that in just a few minutes. But what specifically did you see, do you see, as some of the most serious deficiencies in the system?

Lowry: Oh, that’s easy to answer because all you have to do is look at the data. In Oregon, the maltreatment rate for children in the foster care system is almost twice the national average. The average length of time that children spend in the foster care system in Oregon - and the foster care system is supposed to be a temporary system - is 21 months as compared to the average in the country nationally, which is about 17 months.

The placement stability rate - and placement stability means the number of times a kid moves from one place to another - those kinds of things, moving frequently from one place to another, are just deadening for a child, really destroys the child’s spirit. In Oregon, children spend 5.3 moves as compared to the national average, which is only 4.1. And also very significantly, children are not supposed to stay in the system too long. But when children are returned home by the state of Oregon, they are much more likely to re-enter the foster care system because the state has not done a good job of deciding whether it’s now safe for children to return home. And so the re-entry rate into foster care in Oregon is 14.4%, as compared to a national average of 8.3%.

So when you look both at the national data and see how other systems are doing, and you see how poorly Oregon compares to that, it was clear that a class action lawsuit was necessary. And unfortunately, as the case has gone forward, the state has not indicated any willingness to look at its problems and try to resolve them. But instead, they have kept this case going, and in fact, the last information that we have of how much the state has spent to avoid dealing with these problems is that they’ve spent over $12 million already.

Miller: Meaning, $12 million to fight this lawsuit?

Lowry: That’s right. And they probably have spent more because we don’t have recent data on it.

Miller: How significant was it when Federal Judge Ann Aiken ruled that your lawsuit could proceed as a class action suit?

Lowry: That was enormously significant. Right now, we represent the 4,600 kids who are in the foster care system. We represent every one of them, and that’s what we’re going to prove at trial - that these kids do not have the kinds of benefits that they’re supposed to have under the constitution, to keep them safe, to keep them protected, to give them a chance at a decent childhood.

Miller: Now, you’ve said a couple of times now that you’re going to be going to trial. My understanding is a trial date is set for May 13th, but I also understand that the state sent you a settlement offer just a couple of days ago, just on Friday. What was in that settlement offer? And if you’re going to trial, why was the settlement offer not good enough for you?

Lowry: Well, of course, settlement offers are confidential, so I can’t talk about any of the terms. In fact, we have been engaged in settlement talks for about a month now and we have sent a settlement offer to the state which it rejected, and then they finally sent a settlement offer to us last Friday. And again, I can’t comment on what they’ve proposed or what we proposed, but in fact, the settlement offer that we received was totally unsatisfactory and will not protect the children that we represent and will not give the state the opportunity to be responsible for making things better. The state is not interested in committing to specific outcomes for children, and children need a better system than what Oregon is now providing for them.

Miller: When you say that the state is not interested in guaranteeing specific outcomes, meaning in the kinds of categories that you mentioned earlier, about how many placements they’re in or how long they’re in foster care? I mean, I understand you’re saying that some aspects of this are confidential but if possible, I’d love it if our listeners could have a better understanding of the heart of the disagreement.

Lowry: Well, we’ve said this from the beginning, we think that the state gets better by doing better for the kids it serves. And the way you measure whether the state is doing better for the kids that it serves is by having better outcomes, by getting children back home or into another permanent living situation as soon as possible, by not having children harmed while they’re in state custody. These kids are in fact being abused while they’re in state custody. By not having kids move from one place to another. I mean, that’s just devastating for a kid.

Miller: What are the mechanisms that have worked in other states to accomplish these things? Because, let’s say that the state did agree to guarantee some of these various metrics. What does it take to lower the number of placements? What does it take to speed up the time that somebody is under state care before they are in a permanent home? How do states actually do these things?

Lowry: I’m glad you asked me that question because some states actually do it, and the way you do it is not by just changing your policies, but it’s by changing your practice. It’s by having enough caseworkers, so that caseworkers can spend time on individual children’s individual cases. It’s by having enough places for children to go when they need to be housed outside their homes. It’s by having the special services the kids need - therapeutic foster homes of especially supported services for kids, and looking for placements for children - of all of those kinds of things, and not making decisions just based on a policy but making decisions about whether to return a kid home or not based on the individual circumstances of the individual child and the family.

We certainly believe that children are best raised by families, not by institutions, yet Oregon, time after time, has looked for safety valves about where they can put children. For a while they were sending children out of state. They don’t do that anymore. Good for them. But then they’ve got to find the right places for kids in the state so that the children can get the services they need. Some of these kids have been terribly traumatized by what they’ve experienced at home. They need services. The parents, who may want to take the children back and they really care about the children, need services to help them get themselves into a position that they can take their children back safely and not beat the child up. That requires individual workers. It requires good training. It requires more services for kids and families. But that’s not what Oregon’s providing.

Miller: Do you see major differences in the amount of money per foster capita, in terms of Oregon and other states you’ve worked with? In other words, can a lack of money alone, a lack of investment in the foster care system, explain the differences that you’ve encountered?

Lowry: No, no, it can’t. Of course, a very poor state will probably do a poor job, won’t have enough workers, won’t necessarily have enough placements. But it’s not a matter of money. And in fact, one of the best systems in the country now is the state of New Jersey, where over a period of time, the system in fact, reformed itself by doing exactly those things - making sure the caseloads were lower. You have to start..

Miller: But isn’t New Jersey one of the richest states in the country?

Lowry:  It is a rich state. But look at Oklahoma, not one of the richest states, which is also doing an incredibly strong job in providing additional placements for children. And Oklahoma, they provide additional services for kids in both foster homes and in kinship homes. But the services that the kids need are what the state is providing. And Oklahoma is not a wealthy state at all. It’s not a matter of money. It’s a matter of making a commitment to doing better and really counting on what you do, looking and seeing what you’re doing.

Oregon, for example, does not get children assessed in a timely manner. You can’t provide services for a child if you don’t understand what the child needs, and yet Oregon doesn’t get children the timely assessments that they make. That’s not something we say. It’s in fact a matter of federal law and the state is supposed to do it, but they’re not. Why not? They are not doing it. So this is not a system that needs to be run as poorly as it has been.

Miller: What are you expecting in the trial that is now slated to begin on May 13th?

Lowry: We are going to both produce the data and the stories of children, and expert reports that show that the system is not working for kids, is not protecting kids, and we’re going to present that to the judge, who, as you said, has certified the class [action suit]. And we hope that we are going to convince her that the state needs to do something very differently and needs to be held accountable for what it’s doing to its poorest and most vulnerable citizens.

Miller: Marcia Robinson Lowry, thanks very much.

Lowry: Thank you.

Miller: Marcia Robinson Lowry is a lead attorney in the class action lawsuit against Oregon’s Department of Human Services, brought on behalf of all foster kids in the state. As she noted her nonprofit, A Better Childhood, has rejected the most recent settlement offer from the state. The case will go to trial on May 13th.

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