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Experienced organization sues Oklahoma over foster care system


Scott Cooper January 15th, 2009

A major hurdle was passed by a child advocacy group suing the state of Oklahoma and the state Department of Human Services in hopes of changing the child welfare system. But in their victory, the grou...

A major hurdle was passed by a child advocacy group suing the state of Oklahoma and the state Department of Human Services in hopes of changing the child welfare system. But in their victory, the group will have to reveal information they would have preferred kept away for the time being.

Children's Rights, a child advocacy organization based in New York, is suing the state for violating the constitutional rights of nine children in the state's foster care system. The organization already won several successful battles against other states as it seeks to improve the well being of children in government custody across the country. Those previous victories may shed some light on what Oklahoma might experience should the organization prevail here.

PREMATURE
CASELOAD PRACTICE MODEL

Last week, U.S. District Judge Gregory Frizzell heard arguments on DHS's plea to dismiss the case. DHS attorneys based their complaint on two main factors: The plaintiffs had not stated their case very well, and such action by a federal court would be an intrusion of state's rights. DHS said it was concerned interference from a federal bench would infringe upon the state district courts, which currently handle child welfare matters.

After several hours of back and forth between the lawyers for DHS and Children's Rights, Judge Frizzell ruled against DHS and allowed the lawsuit to proceed.

But in his ruling, the judge gave a mandate to Children's Rights the organization wanted kept out " a list of possible remedies the organization might seek in the case. The judge agreed with the state that knowing what some of the solutions are may help the court in its proceedings.

"Why not require (Children's Rights) to make recommended remedies?" Judge Frizzell asked the plaintiffs attorneys.

PREMATURE
But Children's Rights founder and president Marcia Robinson Lowry said submitting any remedies at this time would be premature.

"That would be irresponsible at this time," Lowry told Frizzell. "The reasons children are being harmed vary."

Lowry argued that until the discovery and investigative part of the case takes place, it's hard to know what solution would work best.

A review of some of the cases Children's Rights has leveled against other states shows the list of remedies runs long.

In Connecticut, for example, the group fought and won for reforms that covered everything from reducing casework loads to developing a training academy for caseworkers. However, Connecticut officials lagged on the agreed reforms, and in 2003, the state's child welfare system was taken over by a federal court. The improvements since then include speeding up child abuse investigations and minimizing foster placements. A committee was formed to reduce the state's reliance on emergency facilities to house children.

A federal takeover of the system is something Oklahoma DHS adamantly opposes.

"We continue to believe that if a trial is held in this lawsuit, the court, after hearing all of the evidence, will conclude that there is no legal justification for federal judicial intervention at all," DHS attorney Don Bingham said.

In Michigan, a "quality assurance process" was implemented to ensure child abuse investigations are fully carried out. A child abuse hotline was set up, and a special unit was created to investigate reports of child abuse in foster settings. Michigan hired a medical director to oversee foster children in need of medication and care.

CASELOAD PRACTICE MODEL
After a lawsuit in New Jersey, officials adopted a "caseload practice model" that placed caps on the number of cases state child welfare workers were required to handle. For many of New Jersey's caseworkers, the cap was placed at 15 cases.

In their Oklahoma lawsuit, the plaintiffs allege child welfare caseworkers average more than 50 children per worker.

Putting restrictions on the number of cases a DHS employee may handle was one of the sticking points for the state's attorneys. But Judge Frizzell questioned why it would be interfering if a federal court placed a cap on case loads.

"It interferes with state proceedings," was the response from DHS attorney Robert Skeith.

The defense attorneys argued since it is state courts that determine the placement of children in foster care, a federal court should not get involved. But Lowry disagreed with that argument.

"State law in Oklahoma, as well as federal law, requires DHS to make the placement decisions," Lowry said. "The district court can review them. The nine children we represent have been placed 100 times. They have not gone to the district court before placing them. That's just wrong. Oklahoma law requires DHS to make those decisions."

Other remedies placed after lawsuits include outside child welfare experts guiding and assisting reforms (New York City); new positions added to help with filing termination of parental rights petitions (Wisconsin); and subsidized permanent guardianship with relatives as an option for children in foster care (Tennessee).

However, one of the concerns for any remedy is cost. Lowry admitted if DHS should have to implement reforms, it could reach into the pocketbook of Oklahoma taxpayers. "Scott Cooper

 
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