A case which could dramatically change Oklahoma's foster care system faces two major hurdles in the coming weeks. The first deals with whether the case has merit, and the second would take the case from a simple lawsuit to class-action status.
In February, New York-based Children's Rights filed a major federal lawsuit against the state of Oklahoma for its handling of nine children in the state's foster care system. The lawsuit from the national child welfare advocacy group claimed the Oklahoma Department of Human Services was "victimizing" foster children by violating their constitutional rights to be protected. The lawsuit also alleges the state broke an agreement with the federal government when it receives federal funds to care for foster children.
The state argues the case should be thrown out for several reasons, one being the matter should be resolved in state court, not a federal bench.
"A federal court should not interfere with those ongoing state proceedings and should defer to the experience and expertise of state-court juvenile judges who deal with foster-child cases almost every day," said Don Bingham, a DHS attorney.
But Children's Rights founder and executive director Marcia Robinson Lowry believes they have the better argument:
"Our defense is those state court proceedings are a very different animal than what these kids need. State court can address these issues, but state court is limited to what DHS has to offer. So, if DHS doesn't have enough foster homes or enough case workers or not enough adoptive homes, there's not a lot the most diligent state court can do about it."
This is why Lowry wants a federal court to tackle the problem.
"These problems have to be solved on a systemic basis," she said. "Individual decisions for individual kids have to be made by state court, but the state court can't deal with the fact that the workers may be untrained, or the fact some of the kids are winding up in shelters because there is a shortage of foster homes, or they are getting abused by the foster parents the state has placed them with because the state isn't either supervising or training correctly to chose those foster parents."
Lowry believes a federal court is more suited to address the situation because the case could be moved up to class-action status, which would make all of the children in the state's foster care system, nearly 11,000, plaintiffs in the case.
That's the second hurdle to be faced in January if the case survives the state's dismissal argument next week in Tulsa.
To bolster their class-action claim, Children's Rights has filed a motion to force DHS to release internal e-mails between the case workers handling the plaintiff children. The brief included some e-mails that reveal how dire the situation was for some of the suing children.
One e-mail use the word "doomed" to describe a child's foster home placement.
An attorney for the state e-mailed the organization and said the nine children named in the lawsuit had approximately 300 case workers and 190 supervisors assigned to them throughout their foster care placement.
"Oklahoma has this extraordinary situation which, frankly, I haven't seen before of having the largest number of workers assigned to these kids," Lowry said. "We want the e-mails from the workers assigned to these kids' cases. The state says (it) assigned so many people to them it's going to be hard to find this information. It's an interesting position for them to have taken."
Both sides are claiming the other has not provided enough information required under the rules of case discovery. The state has filed motions asking the judge to force Children's Rights to reveal more information about the advocates who are listed on the lawsuit as a "next friend" for each of the children. The lawsuit does not name the children, but used their initials instead. The suit therefore listed a next friend to represent them. For some of the children, the next friend was court-appointed.
The state argues this is not proper representation and has requested more information about the friends.
"We believe that their attorneys have made only vague disclosures so far about what evidence they intend to present, and we're asking the court to direct them to make more specific disclosures about the documents that they will offer into evidence at trial," Bingham said.
Lowry said DHS should know what's going on in their system and believes the state's request has a different motive.
"The questions are really about the legal theories in the case. They are asking us information they are not entitled to and will be stuff we have formulated after we have their information."
If the judge rules in favor of the children next week, the hearing on class-action status will take place next month. "Scott Cooper