Over the past decade, the Oregon Department of Justice has tried shifting blame to parents in wrongful death and negligence claims against the Department of Human Services, new reporting from The Oregonian/OregonLive shows.
The publication found 10 cases where this was happening.
But in half of those cases, parents were not accused of any crimes, yet were still sued by the state.
Sami Edge is the assistant breaking news editor for the Oregonian. She joins us to share more on why this is happening and what it means for parents.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The Oregon Department of Justice has tried shifting blame to parents when the state’s Department of Human Services is sued in wrongful death or negligence claims – that’s according to recent reporting from The Oregonian. The publication found 10 cases where this has happened over the last 10 years. In half of those cases, parents were not accused of any crime, yet we’re still sued by the state.
Sami Edge is the assistant breaking news editor for The Oregonian, she joins us now. It’s great to have you on Think Out Loud.
Sami Edge: Thanks so much for having me. I’m thrilled to be here.
Miller: I want to start with one of the cases that you wrote about. It involves a suit brought against the state by a teenager. What did she allege?
Edge: Yeah, so this suit was filed by the teen when she was 15 and filed, of course, through a lawyer; she didn’t file it herself. She alleged that her mother’s ex-boyfriend had abused her, and that the state had received several warnings that the abuse was happening and didn’t follow up appropriately on those tips. So it didn’t prevent her abuse as it could have.
Miller: How did lawyers for the state respond?
Edge: This is one of the cases that I looked at where the part of the defense for the Department of Human Services – which, when it gets sued, it’s represented by the Department of Justice – was to say, “if a jury thinks that we are responsible here, it also needs to look at whether the girl’s parent is responsible.” So they brought her into the lawsuit using what’s called a third party suit, to also make the girl’s mother a defendant.
Miller: What was their argument for why she also bore responsibility for what happened?
Edge: The state argued that she should have known this man was problematic and that she lived in the house, so she also didn’t see the abuse or prevent it.
Miller: This case did go to trial. What happened?
Edge: So the mother argued that she, of course, had no idea the abuse was happening and that as soon as her daughter spoke up about it, she told the police about this man. She took her daughter to the hospital, she kicked him out. The man is now in prison for abusing the girl. A jury decided that the mom was not at fault, and that in fact the state had missed these chances to step in and intervene, and they ordered the state to pay a representative for the girl more than a million dollars.
Miller: What did you hear from this teen’s mother about the effect that being pulled into this lawsuit had on her?
Edge: It was a huge weight on her mental health. I think it was about 14 months between the day that the state filed a suit against her and the day that a jury found she wasn’t responsible. It made her afraid she was going to lose work hours. She’s a single mom, she provides for her two kids. It prompted huge stress. It made her daughter worry about pursuing the lawsuit, although she chose to pursue that lawsuit anyway. And the trial itself was hugely challenging for the mom, she told me that it prompted nightmares and she’s in therapy dealing with a lot of the same stress that she was under after the abuse had first happened.
Miller: I mentioned that you’ve found 10 cases where something like this has happened. What did you hear from lawyers about why the state pursues this strategy?
Edge: I’ll take just a quick second to say, I found 10 cases, the circumstances of those cases are a little different. So even the lawyers who sue the state recognize that there are tiers to this. Sometimes the state will go after a parent who is very clearly accused of harming the child themselves. Sometimes they will go after a parent who perhaps is accused of facilitating that abuse or knowing the abuse was happening and not stepping in. The cases I really wanted to look at were cases in which the parents argue that they were far more removed than that, that they had no idea the abuse was happening or tried to prevent it, and they were still roped into these lawsuits. I found about five cases where that seemed to be the case.
Miller: And what’s the reason? I’m glad you brought up the division there. But for the major subset, about half of those cases, where there haven’t been criminal proceedings brought against parents, and yet they were still named in these third party suits. Why does the state do it?
Edge: The state wouldn’t tell me exactly why they brought these cases. They say that that is protected by attorney-client confidentiality and of course they make these decisions in tandem with the Department of Human Services.
Lawyers who represent the children or who represent the parents have felt like this is a money saving strategy, perhaps the state is trying to find another person to have to shoulder some of the payout if there is indeed a judgment. And parents, like the one I just talked about, felt that the lawsuits were a tactic to intimidate them into dropping their support for the case.
I will say that there were some former attorneys who work for the state who spoke with me, and they made the argument that their job is to defend the Department of Human Services, and it’s legally appropriate that the court would evaluate any party who might be at fault.
Miller: Do you mind telling us the story of another suit that you looked into? This was brought by the state after a young boy named Jhorden was killed.
Edge: So Jordan was a toddler who died in Portland a handful of years ago. The police have accused Jhorden’s father of killing him. However, the father has pleaded not guilty, so he is in the court process winding toward a trial. Jhorden’s estate – lawyer representing the boy’s estate – filed a suit against the city of Portland, against Portland police and against the state arguing that they didn’t step in to protect the boy in time.
So what had happened here was the boy’s mother – her name is Jonicia – had let the boy go see his father. And then she says in her lawsuit that that dad wouldn’t give him back, so she went to police and she said, “Hey, I’m concerned that my son is being abused. I have a picture that looks like some concerning marks on his face.” She spoke to a couple of different police officers about this, she tried to get a restraining order and it didn’t work. And then her son ended up dying in his father’s care about three weeks later.
So the estate for the boy files a lawsuit against the Department of Human Services and the Portland police. Part of the state’s response here was to rope in the parents and to say “well, they were negligent too.” In this case, it did pull the dad into the lawsuit, and it also went after Jonicia who said, “Hey, I was trying to help my kid. I was trying to get him back.”
Miller: The cases that you looked at, they all started before Dan Rayfield became Oregon’s attorney general. What did you hear from his office about this tactic?
Edge: That’s right, most of these cases that I looked at happened under Ellen Rosenblum, who was the former attorney general. I started asking the state about this in January because that was when the lawsuit filed by that teenage girl wrapped up. I heard at the time that the attorney general was looking into this practice. When I circled back to this later in the year, I learned that he had heard about that lawsuit, the first one we talked about with the teenage girl, and decided that this litigation strategy didn’t align with his values. So he has told his trial attorneys that they need to ask his permission before they do this. He said in a statement that this is a step toward a more compassionate and child-centered approach to justice for Oregon.
Miller: One of the challenging points that, to me, emerges in your reporting is that this is complex, that sometimes parents are at fault in one way or another. Sometimes they should have spoken up earlier or done more, in retrospect, to keep their kids safe. How can the law deal with that complexity in a way that doesn’t unnecessarily traumatize parents who aren’t at fault?
Edge: That sounds like a great question for a lawyer, Dave. I do think that part of the question that the attorney general is trying to get at when he says, “you need my permission before you file these cases,” is really evaluating these on a case-by-case basis. Attorneys who worked under Attorney General Ellen Rosenblum said, “we did put a lot of thought into this.” And yet, you hear cases like the first one we talked about, like the case against Jonicia, where these parents and their attorneys really question “What was the value here? Why did you rope me into this?”
Miller: Finally, you talked to a man named Luke Stanton who’s had a lot of different jobs all related to this in different ways. He’s worked as a judge, he was a prosecutor in the child advocacy section at the Oregon DOJ. Now, he litigates cases for children who’ve been abused. What did he tell you about a more systemic fix that he’d like to see?
Edge: I guess first I’ll say that Luke kind of pointed out that in his opinion, this fits into a broader pattern of the Department of Human Services deflecting blame in court. Your reporter Lauren Dake has covered DHS court cases pretty extensively. I’ve heard you talk before on this show about the class action case against the foster care system, which dragged on for five years and cost more than $30 million in legal fees. Luke feels like this is just another example of the state deflecting blame.
And what he argued was that Oregon lawmakers should consider establishing a mediation process, similar to the way some medical malpractice suits get resolved, where perhaps that would have a more gentle approach for families.
Miller: Sami, thanks very much.
Edge: Yeah, thanks for having me.
Miller: Sami Edge is the assistant breaking news editor for The Oregonian. In her recent reporting, she found that the Oregon Department of Justice has regularly tried to shift the blame to parents when the state Department of Human Services is sued in wrongful death and negligence claims.
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