Five years ago, the national advocacy group A Better Childhood teamed up with local nonprofit Disability Rights Oregon to file a class action lawsuit against Oregon’s Department of Human Services. The state’s child welfare system had been sued individually many times over the years over horrific outcomes in individual cases. But this class action was the first of its kind, representing all current and future children and youth in foster care in Oregon. It didn’t seek monetary damages — only tangible changes to the system that would result in better care for kids placed in foster care, less abuse and more stable homes. Last week, just days before the case was set to go to trial, the two sides reached a settlement. We hear from lead attorney Marcia Lowry about the details of the settlement and what advocates hope they will mean for children and youth in care.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Five years ago, a national advocacy group and a local nonprofit filed a class action lawsuit against Oregon’s Department of Human Services. They alleged that the state mistreats children in its foster care system and has failed to fix glaring problems. But they didn’t want money, they wanted better conditions for kids placed in foster care: less abuse, more stable homes. Last week, the two sides reached a settlement. Marcia Robinson Lowy is the director of the national nonprofit A Better Childhood. She brought the suit as one of the lead attorneys in the case, and she joins us once again. Welcome back to the show.
Marcia Robinson Lowry: Happy to be on the show.
Miller: It’s great to have you on again. In the big picture first, what do you see as the most important pieces of this settlement?
Lowry: The most important piece of all I think is that children need to be safe in the foster care system. And that is an issue of enormous importance in Oregon. The most fundamental right a child has when the child is taken away from the parent and taken into a state system is the right to be fair, and the rate of maltreatment in Oregon is almost twice what the national standard is. So that was certainly one of the things that motivated us in bringing this lawsuit. But the lawsuit goes beyond that, and the settlement provides that there will be a process to have oversight over how the state is meeting the rate of maltreatment in care, as well as a number of other rates, including whether placements are appropriate, and whether children are getting the services they need.
I think the important thing about this settlement is that it provides real oversight to the state agency. And that it will be held accountable for whether or not it measures up, as measured by a neutral child welfare person who will be looking at how the system works, how it’s taking steps toward improving itself, and whether it’s taking the steps to meet specific outcomes that will be set by this neutral person.
Miller: I want to hear more about the power that this person is going to have and they’ll be announced shortly. But to take some steps back, how close did this case come, do you think, to going to trial?
Lowry: About three days close. We were really prepared. We had our witnesses lined up, we had rented houses in Eugene. We had our witnesses prepared. We had our evidence prepared. We thought we had a very, very strong case. We didn’t think the defendant’s case was very strong. Of course, the defendants probably thought it was. But we were prepared to tell the stories of these children who had been harmed in the foster care system, who re-entered the foster care system who didn’t have appropriate placements. We were put on pause I think the Thursday before, I was going out on Saturday to Eugene to put on the trial, with the other lawyers I’m working with of course.
Miller: You’ve filed similar suits over a number of years in more than 20 states. Have any of them gone to trial?
Lowry: Yes, just a few. There was a case that went to trial in the District of Columbia, which we won. And that system unfortunately was put into receivership because that system was so bad. We tried a case in Texas with other lawyers, other firms, about 10 years ago. So some of the cases have gone to trial but not many. Most of these cases settle before trial, often on the eve of trial, as this one did.
Miller: Why do you think this one got so close?
Lowry: Well, I think the fact that there was a private law firm involved in the case made something of a difference. Sometimes when the state represents itself, and has its own lawyers, it may take a more conciliatory view and realize where we’re ultimately going to get to. That is that we hope we settle the case. It’s better to settle the case because then the state can buy into the settlement agreement, it’s not just something that’s imposed on it. So it is better to be able to negotiate and figure out what will work better for the system once the system agrees that it needs some help. And that’s what happened here, finally. The state did acknowledge that there were problems, and we’re prepared to accept the oversight that we offered.
Miller: You filed this case, as I noted in my intro, five years ago. What were the last five years of legal wrangling like? You can’t summarize all of it obviously, but in the broad strokes, what were the back and forths?
Lowry: A lot of them were frankly very ridiculous because the state litigated this case very hard, they had very competent counsel and virtually everything was fought. And that was too bad because we could have reached this agreement far earlier in the case. [It] would have saved the state a lot of money, but most importantly, it would have helped the kids a lot sooner. What we’re very happy about now is that rather than going to trial and taking the time it takes for the judge to reach a decision and then it being appealed, etc., it would be years more before the children would get any relief in this state.
Miller: That’s the glass half full version, that it could have been worse, it could have gone to trial. But as you and others have noted, the state of Oregon spent $18 million at least of taxpayer money fighting this. When you said that the settlement you reached, you could have arrived at that years ago, do you mean that literally? Are there any aspects of what the Department of Human Services and the plaintiffs agreed to that could only have been arrived at after those five years?
Lowry: I don’t think so. We had settlement discussions during the course of the case. I can’t discuss the content of those discussions. But looking at the settlement now and where we arrived at, I have no doubt that we could have reached the settlement much earlier in the case. And it’s a real shame that we didn’t, because we put a huge amount of effort into it as the defendants. And we wound up at a very reasonable place which I would have hoped we could have gotten too much sooner.
Miller: Give us examples if you don’t mind of what the Department of Human Services and its foster care system could have spent those $18 million on if it hadn’t been on lawyers?
Lowry: Well, I’m afraid they wouldn’t have spent it on children, but maybe they would have. There’s no question but that there are problems in the Oregon child welfare system. There’s no question about it. There aren’t enough placements. Too many children are being maltreated. Children are reentering care too soon. Children are not getting appropriate services.
All you have to do is look at what the state has done whenever it gets any pressure on it. In terms of children that don’t have placements, instead of developing good placements for children, they sent the children out of state for a while. They stopped that because of public attention to it and the pressure. Then they put children into refurbished jail cells, dependent children. Then there was pressure about that, they stopped that. Then they hired Dynamic Life, which was a very, very inadequate system. The state ended their contract when public pressure came about. But, there weren’t efforts to really try to find appropriate placements for these children. Instead, it was just find some place to put them, any place, and maybe it’ll be quiet for a while. That’s not the way a good child welfare system should work, in my view. They need to develop what they need for these kids, and that’s not what the state had done.
Miller: Marcia, I want to go back to the fact that there wasn’t a trial. I was struck by a quote that Lauren Dake got from Democratic State Senator Sara Gelser Blouin recently. She’s long been critical of the state’s foster care system, and she told Lauren she is glad the case is being settled. But she added this: “I’m disappointed the kids didn’t get a chance to tell their stories in a safe place. It’s important to hear from them. We can’t have a culture of retaliation for speaking out, whether it’s real or perceived.” Do you think that anything was lost by not having a trial?
Lowry: I don’t think as much was lost as was benefited by the fact that we have a resolution more quickly. Because had we gone to trial, there would have been years of further litigation. And we’re going to have a resolution now.
But I also want to say that some of those stories can still be told, because there is going to be what’s called a fairness hearing. So the settlement hasn’t been finally approved by the judge. The federal law requires that there be a fairness hearing, at which people can come and object to the settlement or support the settlement. And that will be a hearing at which some of these youngsters can come and speak about what the settlement of this case means to them, and how they wish it had been settled so that the system was sufficiently better before they spent time in the foster care system.
So I don’t think we’ve lost that entirely. We’re going to do a really thorough job of notifying the children who are affected by this, and the grown children who went through this system, so that they can come and speak to the court. So I don’t think we lose it all together.
Miller: I wanna run an email by you that we got this morning. It’s from Al Spofford who wrote that he worked for over 30 years in Michigan’s child welfare programs. He wrote this:
“For many years, the youth in Michigan’s child welfare programs suffered greatly, similarly to those in Oregon. Youth and care moved repeatedly through poorly thought out placements, caseworkers changed often for the youth. It wasn’t unusual to have three caseworkers assigned throughout the year for one youth.
“Each year, about 30% of children’s case workers left, either quitting outright or transferring to other non-child welfare positions. It wasn’t until federal court oversight stepped in and ordered major changes that positive changes occurred. Changes at the top helped but it was changes at the bottom that made the impact. Whereas, caseworkers had 30 youth assigned to their load previously, that was dropped in half to 15. Casework supervisors went from 20 caseworkers to monitor and advise, to 10.
“Yes, it takes a lot of money to hire and train sufficient staff, but just changing the top leadership and making directives in policy and procedures will likely be insufficient, and Oregon’s child welfare system will continue to fail the children in its care.”
A long email, but I thought it was important to read because it really zeros in on this question of staffing, of caseworkers in particular and the people who are managing and supervising caseworkers. Is that something that the neutral [child welfare person] will be able to specifically address?
Lowry: Well, I just want to say that the Michigan case was one of the cases that I brought. And that settled literally on the eve of trial, by the way. So I just thought that was an interesting note. I’m sorry, I forgot your question.
Miller: My question is, what is it going to take? I said in my intro that you weren’t asking specifically for damages or money, you wanted changes. But what this email writer says here is, it also takes money, he says, to hire more caseworkers and caseworker supervisors. Will the settlement lead to that?
Lowry: Yes, I think it definitely will. And the reason it will is because the neutral, who has not yet been chosen, is responsible for both setting what the outcomes are – that is the rate of maltreatment has to come down, there have to be more appropriate placements, etc – but then the neutral has the responsibility and the authority to evaluate how the state is doing. And in fact, the Oregon system probably has close to enough workers. But it does not, in fact, have both the services and the pressure to develop services for kids who have particular problems, kids who are not being listened to. So it will take some money, but it’s not just money, it really isn’t. The state spends a lot of money now, first shipping children out of state, then spent a fortune on Dynamic Life. And it doesn’t save the state money, but hopefully will stop the state from spending the money in a way that is dysfunctional. And that’s the real problem. The state spends money in a way that doesn’t help the kids it’s supposed to serve.
Miller: Am I right that you and the other parties, including the state, have just until Friday to agree on this so called neutral, the person who will oversee the settlement?
Lowry: Well, the process is that we are going to try to agree, and that process is underway. If we don’t agree, then each side will submit a nominee to the judge and the judge will decide. So all of this is going to be done, I think, in a very careful way. I’m sure, should we not be able to agree, the judge will look at the candidates very carefully, and I’m sure will make a good judgment on the person who can best serve this role. It’s a very, very important role.
Miller: I don’t suppose that you want to give us a name right now, although if you do, feel free. But if not, as you said it’s a very important role, they have a ton of power, they’ll be applying a ton of scrutiny. What are you looking for in this person?
Lowry: Well, the qualifications of the person are laid out in the settlement agreement and they’re totally appropriate. It needs to be somebody who has knowledge of the child welfare system, has knowledge of the basic standards in the system, also knows what’s happening in the child welfare world, what are the good processes, in other words, it’s not good to put kids in institutions and send them away, but knows that it’s important to develop services, to enable kids to stay with families, all of that. So somebody with knowledge about child welfare systems, and somebody who is committed to seeing it get better.
The most important part of this is that I hope that the state and the plaintiffs and the neutral can work together in a productive way, not the way we’ve been working together for the last five years, litigating every tiny point, and big points as well. Settlements work best when each side is committed to using it to get better, to make the system better. That’s the way that it works. There are provisions in the settlement that require that if there’s a dispute, it can be brought to a magistrate. It is a better process if both sides are committed to seeing this system improve, if both sides admit that the system is not where it should be. Obviously, plaintiffs have already made that commitment. But it’s important that the defendants make that commitment as well.
They’ve made some progress in certain areas to be sure. But they’re not where they need to be, and the kids are not and in this state are not getting what they need and deserve and what the law requires. So if both sides have that commitment, then I think we are heading toward, we hope, a big improvement in the Oregon child welfare system.
Miller: The lawsuit was brought five years ago on behalf of 10 kids, as I mentioned. In that time since it was filed, five of the kids have now aged out of the child welfare system. One is now in state prison, one is living in their car, three others according to information from Disability Rights Oregon are still, in quotes, “struggling to transition into adulthood.” Two of them now have children of their own. These individual stories, what do they tell you about Oregon’s child welfare system?
Lowry: It tells us that the system is failing far too many children. That’s what it is in a nutshell. That this is a system that’s supposed to help kids, help them heal from the traumas they may have experienced at home, and these children only get further damaged once they’re in their child welfare system. It’s not necessary for a child welfare system to function as poorly as this one does. We hope that this is the beginning of a process to enable the system to face its problems and address its problems, and with the help of the neutral, to be able to come to the point where they can fix these problems. It’s fixable. It’s definitely fixable.
Miller: Marcia Robinson Lowry, thanks very much.
Lowry: Thank you.
Miller: Marcia Robinson Lowry is the director of the national nonprofit, A Better Childhood. She brought the suit against Oregon’s Department of Human Services, along with the local nonprofit, Disability Rights Oregon.
We did get a statement this morning from Aprille Flint-Gerner, the state’s child welfare director. She wrote:
“This settlement gives us the opportunity to continue our efforts to transform the child welfare system by supporting and preserving families, while focusing on continuous improvements that will yield better outcomes for families we serve. We appreciate the hard work by both parties in reaching an agreement that is positive for Oregon children and families.”
The statement continued:
“We know there is much more work ahead. The settlement agreement creates an opportunity to combine current ODHS Child Welfare’s leadership’s expertise with the expertise of an experienced neutral to continue the agency’s progress. We look forward to working with the neutral, the legislature, and system partners on continuing to improve areas outlined in the settlement.”
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