Tulsa judge rules class-action lawsuit against DHS can go forward on single claim

A federal judge on Thursday ruled a class-action lawsuit against DHS officials can go forward to trial on its most serious claim. U.S. District Judge Gregory K. Frizzell did dismiss two other civil rights claims against commissioners and the director of the state Department of Human Services.
BY NOLAN CLAY AND RANDY ELLIS Published: December 2, 2011
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A federal judge on Thursday ruled a class-action lawsuit against DHS officials can go forward to trial on its most serious claim.

U.S. District Judge Gregory K. Frizzell did dismiss two other civil rights claims against commissioners and the director of the state Department of Human Services.

The single surviving claim is that DHS policies and practices violate foster children's constitutional rights to be free from harm and risk of harm.

The judge in his 32-page opinion noted there is evidence that certain conditions for foster children have worsened recently.

The average daily population of children in DHS shelters, for instance, grew from 53 in May 2010 to 104 in May 2011. The judge wrote that senior DHS managers and commissioners admit it is not in a child's interest to remain in a shelter because a child is better off in family-like settings.

A trial is set for February. It will not involve a jury.

The 2008 case could cost the state millions of dollars if DHS loses at trial. The judge could force the agency to enact costly reforms to its foster care practices. The judge also could require the state to pay millions of dollars in fees to attorneys for the New York-based advocacy group, Children's Rights, which filed the lawsuit.

The advocacy group is not seeking damage awards for every foster child. “This is a lawsuit about fixing the problems,” said Marcia Robinson Lowry, executive director of Children's Rights.

The state already has paid more than $6 million to outside attorneys DHS hired to fight the lawsuit.

About the judge's findings

The judge found Children's Rights presented sufficient proof to create a genuine factual dispute “about whether defendants' policies, practices and procedures violate” foster children's due process rights to be reasonably safe from harm.

Lowry said, “These are issues we will be able to prove at trial because they come not only from our experts, but they come from DHS data and DHS testimony. Opinions of how harmful this is come not only from our experts, but from DHS testimony and from DHS experts. I think we're going to have a very strong case at trial.”

A Tulsa attorney who is representing DHS stressed that the judge's opinion is not a decision about the accuracy of the accusations against DHS.

The attorney, Donald Bingham, said, “He was not finding that certain facts are true. He is saying there is sufficient evidence that each side should get its day in court so he can hear all the evidence and then he will weigh it. He will decide what is scientifically sound and what is plausible and believable and persuasive.”

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