National Center for Youth Law

STRATEGIES

Braam v. State of Washington

This case was originally filed by thirteen current and former foster children against the State of Washington, the Department of Social and Health Services (DSHS), and the Secretary of DSHS seeking damages for injuries plaintiffs suffered as a result of the state’s practice of shuttling them from one foster facility to another.  In March 2000, the court approved the filing of a Second Amended Complaint in which plaintiffs added class action claims on behalf of a class of foster children who had experienced three or more placements while in state custody. Plaintiffs alleged in their complaint that federal statutes require that whenever a foster child’s placement is changed (1) the child be afforded procedural safeguards and (2) the child’s case plan be amended to reflect the reasons for the change and how the new placement meets the child’s needs.  The class sought relief under Title IV-E of the Social Security Act, the Due Process Clause of the Fourteenth Amendment, and numerous state statutes and regulations.

 

Overview

FILE NO., COURT, AND DATE FILED

98-2-01570-1 (Wash. Supr. Crt., Whatcom County, Nov. 3, 1998)

CITATIONS

81 P.3d 851 (Wash. 2003)

ATTORNEYS FOR PLAINTIFFS

Timothy C. Farris
Cynthia Novotny
Brett & Daugert
300 North Commercial / P.O. Box 5008
Bellingham, WA 98227-5008
(360) 733-0212
Fax: (360) 647-1902
tfarris@brettlaw.com

William Grimm
National Center for Youth Law
405 14th Street, 15th Floor
Oakland, CA 94612
(510) 835-8098
Fax: (510) 835-8099
billgrimm@youthlaw.org

John Midgley
Casey Trupin
Columbia Legal Services
101 Yesler Way, Suite 600
Seattle, WA 98104
(206) 464-1122
Fax: (206) 382-3386
John.Midgley@ColumbiaLegal.org

HISTORY AND STATUS

In July 2000, plaintiffs filed a class certification motion.  Defendants spent almost a year conducting discovery related to the motion.  In August 2000, defendants filed a motion to dismiss the federal child welfare claims.  On November 9, 2000, the court denied defendants’ motion without prejudice.

In March 2001, defendants filed a motion for partial summary judgment.  Defendants alleged that under federal law any rights to notice and a hearing prior to a change in the child’s foster care placement are rights of the parent, not of the foster child.  Moreover, defendants argued that even if foster children did have a right to procedural safeguards, Washington law provided adequate protections.  In this same motion, defendants asserted several defenses to the named plaintiffs’ damages claims.

In May 2001, the court granted defendants’ motion for partial summary judgment, holding that plaintiffs were not entitled to the procedural protections they sought. The court also dismissed the § 1983 damage claims against DSHS and the Secretary, but retained the state law claims in support of the damage action.

On May 30, 2001, plaintiffs filed an amended motion for class certification revising the proposed class definition to include all children who are or will be in DSHS custody and who have been in three or more placements since DSHS assumed custody.  On June 25, 2001, the Court granted plaintiffs’ motion.

In June 2001, defendants filed two summary judgment motions arguing that any order by the court taking over the foster care system infringed upon the legislative and executive branch’s authority to determine how state resources are allocated and asserting that alleged emotional harm and deprivation of mental health treatment did not rise to a Fourteenth Amendment violation.  The Court denied defendants’ motions.

In late September 2001, the parties agreed to settle plaintiffs’ claims for monetary damages.  Defendants agreed to pay $1.3 million to the thirteen individually named plaintiffs.  Each child received $100,000 placed in trust to meet his or her needs for counseling, education, housing, job training, or necessary assistance.

Defendants then sought discretionary review by the Washington Court of Appeals of the denial of their summary judgment motions.  On October 9, 2001, a week before trial, the Court of Appeals denied review.  Following a seven-week trial, the jury returned a verdict for plaintiffs, concluding that state practices violated the constitutional rights of foster children and that those practices caused children to suffer significant harm.  Following plaintiffs’ submission of a proposed injunction in March, the Court requested that the parties meet with an organizational systems reform and child welfare expert in order to reach a remedy.  Defendants refused to meet with the court’s expert.  Defendants also failed to submit an alternative injunction.  On May 31, 2002, the Court entered an injunction granting plaintiffs’ requested relief in every area addressed in the proposed injunction.

Defendants immediately filed a notice of appeal and a motion for stay.  On June 7, 2002, the Court of Appeals issued a partial stay of the injunction and certified the case for expedited appeal to the Washington Supreme Court.  The Washington Supreme Court granted certiorari on June 13, 2002.

In December 2003, the court reversed the judgment on the basis of an error in the jury instructions.  On remand, the court directed that defendants were not entitled to a jury trial.  A unanimous court explicitly upheld plaintiffs’ arguments on the nature and extent of foster children’s constitutional rights.  The Washington Supreme Court rejected defendants’ arguments that children in foster care have no constitutionally protected rights or that the rights they do possess are no greater than convicted criminals in prison.

Upon remand, the trial court ordered the parties to attempt to reach a settlement through mediation.  Judy Meltzer, deputy director of the Center for the Study of Social Policy, and Kathleen Noonan, a consultant to the Annie E. Casey Foundation, were the mediators.  After several lengthy sessions with the mediators, a comprehensive settlement was reached at the end of July 2004.  The settlement built upon and incorporated some parts of the state’s Kids Come First II Plan, which was Washington’s federal Program Improvement Plan.  The settlement also established a five-person panel with considerable authority over the state’s child welfare system.  Among other responsibilities, the panel has the authority to set professional standards for the day-to-day practices of the agency and to devise specific actions the agency must take to improve children’s mental health and services to adolescents.  The agency was granted a fifteen-month grace period before the panel could revise actions to be taken in areas other than mental health and adolescents.

Subsequently, the court approved the proposed settlement.  The Panel members were selected and have been meeting regularly since December 2004.  Their initial tasks required the development of goals, benchmarks, and action steps for children’s mental health and improvements in the quality of care and services to adolescents.  In November 2005, the panel produced a detailed reform plan, which sets benchmarks for the next five years, and mandated monitoring reports every six months to track performance.

In March 2006, the Panel released its first monitoring report. The Panel found that the State failed to complete more than 70 percent (32 of 45) of the “action steps” to be completed by the end of 2005.

April 2007 marked the first release of the long-awaited Braam benchmark data. The benchmark data revealed that the state had failed to improve adequately in any of the measured areas. The Department was required to develop compliance plans for all of the benchmarks that it failed to meet.

The Panel released its fourth monitoring report in October 2007. The report found that the Department failed to meet 13 annual benchmarks and did not complete a number of action steps during the 2006 fiscal year. In January 2008, plaintiffs filed a motion asking for court enforcement of four areas of the settlement agreement involving safety, caseloads, sibling contact, and health and education screenings. The court ruled in plaintiffs’ favor on June 30, 2008, and ordered the Department to show “demonstrable” progress within a few months.

The seventh monitoring report was released on October 8, 2009. The state was found to be out of compliance in 13 areas. The Panel rejected several plans proposed by the state to address these areas, and the state subsequently submitted revised plans. Plaintiffs submitted comments on the plans on March 1, 2010, and a final decision from the panel will be forthcoming.

According to data released in early 2010, the Department has made progress in some areas but has met requirements in only 7 out of 32 reform outcomes. The data showed that the Department has made improvements in caseloads, health and medical screening, and the frequency of foster youth running from placement and time they spend on the run. However, it also showed that many other critical areas had no progress, including visits and contacts between siblings. Plaintiffs’ attorneys continue to monitor and track the Department’s progress as well as the effect of the Washington State budget on the requirements laid out in Braam. In addition, the Panel has taken a more active role in monitoring the potential impact of budget cuts on Braam’s benchmarks, including requiring the Department to account for these fiscal cuts in their compliance plans.