TULSA — 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-
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.”
The judge noted in his opinion that Children's Rights 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 federal standard even though the state doesn't report all instances.
‘Evidence of serious issues'
The judge also noted the advocacy group “presented evidence of serious issues with inadequacy of placement options, overuse of shelters and lack of placement stability in the foster care system.”
He wrote the evidence shows DHS has a shortage of foster homes, group homes and adoptive homes. He noted a Children's Rights expert concluded the shortage has led to dangerous and inappropriate placement of foster children.
About shelters, the judge wrote there is evidence children under the age of 6 are being kept in shelters for more than 24 hours and at times children are kept in shelters longer than 30 days. He noted the Children's Rights expert concluded “that the overuse by DHS of emergency placements such as shelters is harmful to children because it jeopardizes their ability to form emotional attachments ... crucial to their development.”
The judge further noted there was evidence that Oklahoma ranks 45th out of 51 jurisdictions nationwide in placement stability for foster children.
He noted there is evidence that 28 percent of the children in out-of-home care for less than 12 months in fiscal year 2010 had three or more placements. He wrote that was an increase from the year before.
“The number of foster children who had more than 20 placements was 150 in March 2010 and increased to 164 as of March 2011,” he wrote.
The judge wrote that both sides' experts, the DHS officials who are being sued, and DHS senior 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.”
He also wrote that Children's Rights “presented evidence — albeit disputed — that defendants' oversight of the DHS foster care program is as inadequate as to give rise to a question of material fact whether defendants have abdicated their professional judgment.”