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

Oklahoma - DHS finds funding for benefits, legal defense

By GINNIE GRAHAM World Staff Writer

OKLAHOMA CITY - About $10 million in one-time funding has been found in the budget for the Oklahoma Department of Human Services to avoid cutting benefits in two low-income programs and to add $1 million to defend a class-action lawsuit.

On Tuesday, the commission overseeing the agency approved the expenditures, which include avoiding proposed hikes in child-care subsidy co-payments and avoiding lowering monthly assistance to a program for families with developmentally disabled children.

Commissioners also voted to use the money toward the class-action lawsuit filed by New York-based Children's Rights alleging abuse in the foster care system. Trial is set for February in the U.S. Northern District Court in Tulsa.

This brings the total cost of litigation to at least $9 million for private attorneys - $6 million already spent and $2 million previously planned for next year.

DHS Director Howard Hendrick said the funds are from amounts carried over from previous years. He said a new process allows officials to identify carryover funds earlier.

Hendrick said without new funding in the 2013 budget, these cuts may still need to be made.

"We would have found it eventually in January, February or March," Hendrick said. "We have a lot of one-time funds paying for recurring costs, and that's the biggest pause I have about the recommendation. But it's the right thing to do to push on through."

During discussion, Commissioner Jay Dee Chase cut off Commissioner Steven Dow from asking questions and called for a vote on the changes and monthly financial report, which had not been presented.

Procedure allows for further discussion and Dow asked for a "friendly amendment" for a separate vote on the service programs and legal fees.

"I don't accept that," Chase said. "My motion is made and seconded and I don't want to change it."

Dow said he wanted to explore if the $1 million could be used toward increasing foster-care subsidies or in the field offices.

"I'd like to have a conversation and discussion on where else we could spend $1 million before it goes to litigation costs," Dow said.

Commissioner Brad Yarbrough asked Chase to amend the motion so the board could hear the monthly financial report before making an approval.

Commissioners passed the changes by a 7-1 vote, with Dow dissenting.

The meeting ended with a vote to settle a 2007 lawsuit filed by a former foster child, who was subjected to "horrific acts of sexual abuse" by his foster father and his live-in boyfriend.

DHS commissioners and agency attorney Charles Waters refused to state the amount of the settlement or how it is being paid.

Terms were discussed in executive session, and the 7-1 approval was taken in open session.

According to the Oklahoman, the commissioners voted to pay a share of the $1.1 million settlement. The attorneys blacked out the settlement amount in the court papers, but The Oklahoman was able to calculate the amount of the overall settlement because attorneys asked for $308.90 in daily interest until it is paid.

Dow was the lone vote against the settlement and said he has not seen a proposed settlement agreement document.

"I personally did not feel I had enough advance knowledge or notice to make an informed decision," Dow said. "I was uncomfortable being brought in at the last minute."

The victim was a 15-year-old boy in Cleveland County who was placed in the home of Paul Stephen Hull in December 2005, the court records state. Shadow Mountain Behavioral Health System was named in the lawsuit as a contractor with DHS and had a hand in the boy's foster placement.

Hull's live-in lover, Erwin Charles Swender, started molesting the victim, and Hull joined in after the third or fourth assault, records state.

Swender had spent time in an Iowa juvenile facility as a 16-year-old after causing the death of a 22-month-old by hitting the toddler three to four times, according to court records and Iowa media reports.

He had a history with DHS, resulting in the termination of his parental rights to at least seven of his children.

DHS removed him for a few days in February 2006 because of concerns about conditions there. He was returned to the home after Hull agreed to a safety plan, which included keeping Swender away.

The lawsuit alleges Hull ignored the plan, with Swender continuing to live in the home and the two continuing to abuse the boy. DHS removed him for good when he finally told a counselor about the abuse.

The victim said he was abused for several weeks and was exposed to drugs and pornography.

Hull - a former teacher at Oklahoma City's Capitol Hill High School - pleaded guilty in 2007 to attempted rape, forcible sodomy, second-degree rape, lewd molestation and meth possession. He agreed to eight years in prison and to testify against Swender.

Swender pleaded guilty as jury selection began in 2007 to lewd acts with a child, forcible sodomy and meth possession. He was sentenced to 20 years.

The lawsuit alleges DHS left the victim in the home despite suspicions that Hull was ignoring the safety plan.

Since 2005, DHS has paid at least $3.4 million to settle child-welfare lawsuits, according to a Tulsa World investigation. That is in addition to the defense of the class-action lawsuit.

Source http://www.tulsaworld.com/news/article.aspx?subjectid=11&articleid=20111026_11_A1_CUTLIN294857

Children's Right: Texas' Rick Perry defends dismal treatment of foster care kids

AUSTIN, September 27, 2011—Last March, a child advocacy group filed a lawsuit against the state of Texas, claiming serious problems in that state’s foster care system.

The 89-page lawsuit was filed by the New York-based child advocacy group Children’s Rights on behalf of nine Texas children between the ages of nine and 16.

Among the most common abuses in the Texas system under Governor Perry’s stewardship, is the uprooting of foster care children. Statistics show that, as of 2009, children who had been in the state's custody more than three years had been in an average of 11 different homes or shelters.

The lawsuit alleges that under the leadership of Governor Rick Perry, the state of Texas has allowed these children, and, reportedly 12,000 others, to be bounced from home to home under the foster care system, systematically denying them a right to a permanent family.

The suit also claims that children in the state’s foster care suffer both physical and mental abuse, are denied mental health services, and are routinely separated from siblings.

The suit cites specific examples of the detriment caused by Perry’s administration to foster kids, like one child who wound up in a hospital in Belton, Texas so severely medicated that he was brought in on a stretcher unable to stand or communicate. Another incident is detailed involving a child who was consistently sexually abused by his foster care family chosen by the state.

While the suit seeks no damages, it asks that the state reform and improve its foster care system, which during Perry’s tenure has been seriously compromised due to negligent supervision and outsourced contracts to third parties without accountability.

Governor Rick Perry, who is officially one of the defendants in the suit, had his office issue this innocuous statement in response:

Child protective services has continued to be a priority for the governor, including declaring CPS reform an emergency item in the 2005 legislative session, and taking other steps to further improve the system since then.

The governor believes the elected members of the Texas Legislature, rather than a New York interest group or a federal judge, are better suited to determine how the State of Texas should care for some of our most vulnerable Texans – our children.

The governor expects the agency to continue ensuring Texas children are safe, and receive the proper care and services they need.

Source http://communities.washingtontimes.com/neighborhood/red-thread-adoptive-family-forum/2011/sep/27/rick-perry-defends-dismal-treatment-foster-care-ki/