Judge rules two of three civil rights claims lacking in foster care case - Oklahoma

By DAVID HARPER

A Tulsa federal judge threw out two of three civil rights claims on Thursday in a class-action lawsuit that seeks changes in Oklahoma's foster-care system.

The plaintiffs, however, claimed to be happy with the decision because their "core claim" is still alive.

U.S. District Judge Gregory Frizzell allowed a cause of action dealing with foster children's due process rights to be free from harm - and risk of harm - to survive, but he granted the defense's motions for summary judgment on two other constitutional claims.

The lawsuit was filed against various Oklahoma Department of Human Services officials in February 2008 by Children's Rights, a national child-advocacy group based in New York, and five law firms.

The original plaintiffs were nine children who allegedly had suffered in DHS placements. The case has since become a class-action lawsuit, with thousands of children in DHS custody as plaintiffs.

"This decision is a huge victory for Children's Rights as well as the abused and neglected children in Oklahoma's DHS," Marcia Robinson Lowry, executive director of Children's Rights, said Thursday evening. "The federal court in Oklahoma has sustained our core claim in today's decision, that children are either being subject to harm or at risk of harm while in state custody."

However, Donald Bingham, an attorney for the defense, said it is important to note that Frizzell did not rule on the merits of the case, finding only that the plaintiffs' side had introduced enough evidence that will "entitle it to its day in court" in February.

Frizzell wrote: "The court concludes plaintiffs have presented proof sufficient to create a genuine dispute of material fact whether defendants' policies, practices and procedures violate plaintiffs' substantive due process right to be reasonably safe from harm."

Frizzell found that the "plaintiffs have presented evidence - albeit disputed - that defendants' oversight of the DHS foster program is so inadequate as to give rise to a question of material fact whether defendants have abdicated their professional judgment."

Also, the judge wrote that experts on both sides of the case, as well as senior DHS managers, "all agree that excessive caseloads, missed visits between case workers and children and inadequate investigations of abuse and neglect pose a threat to the safety of foster children and that inadequate placement options, excessive use of shelters and frequent placement moves threaten the psychological and emotional health of children."

Frizzell wrote that plaintiffs had presented evidence that from 2002 through 2008, the reported rate of abuse or neglect of Oklahoma foster children has been 1.54 to 3.97 times greater than the national rate.

Oklahoma had one of the five highest reported rates in the country during that time, Frizzell wrote.

The judge threw out the plaintiffs' claim that the defendants' policies, practices and procedures interfere with the children's First, Ninth and 14th Amendment liberty and privacy rights.

The plaintiffs asserted that, while DHS policy requires visits between parents and children as well as placement of siblings together whenever possible, the agency's records from 2008 to 2010 reflected that less than 15 percent of visits due between foster children and their biological parents were completed. The plaintiffs also alleged that DHS has a routine practice of separating siblings in custody.

Frizzell wrote that granting the defense's motion for summary judgment on the claim was appropriate because, while individual children can establish acts by DHS workers that have violated their right of familial association, a class-wide deprivation cannot be proven.

The judge noted that the DHS officials sued in the case do not deal with foster children directly. He wrote that, at most, the evidence might support a conclusion that the defendants failed to adequately supervise workers who were charged with the responsibility of ensuring that parent-child visitation occurred.

Frizzell also ruled for the defense on a claim alleging violations of Oklahoma statutes pertaining to the procedural rights of foster children.

The judge wrote that it is impossible for the class as a whole to establish a key element of such a claim because most children's procedural due process rights have not been violated.

Frizzell noted that while the plaintiffs argue that all members are "at risk," they cited no legal authority that such a status meets the requirements for establishing a violation of relevant Fifth and 14th Amendment rights.

The trial, which won't involve a jury, is set for Feb. 21 and is expected to last about four weeks.

Neither side plans to appeal Thursday's mixed ruling.

Source http://www.tulsaworld.com/news/article.aspx?subjectid=14&articleid=20111202_14_A1_CUTLIN528313