Braam Lawsuit Vindicates Constitutional Rights of Foster Children in Washington State
In 1998, thirteen foster children filed a lawsuit in Washington state court, seeking money damages for the harms they suffered in foster care. The suit eventually grew into a class action for injunctive relief on behalf of more than 3,000 of Washington’s 10,000 foster children. The children sued Washington State, the state Department of Social and Health Services (“DSHS”), and the Secretary of DSHS. After a lengthy trial and a key ruling from the Supreme Court of Washington, Braam resulted in an innovative settlement to improve the lives of Washington’s foster children and youth.
The Braam lawsuit focused on particular problems within Washington’s foster care system: the frequency of placement changes, the unsafe or inappropriate nature of some foster placements, the separation of siblings in foster care, the lack of mental health services, the inadequacy of foster parent training and support, and the lack of services for adolescents.
The experiences of the Braam plaintiffs, as highlighted in the complaint, described a litany of harms. Multiple placement changes were common. Plaintiff I.H., for instance, lived in forty-five different placements during her time in foster care. S.T. moved about twenty times between ages two and four-and-a-half. Nearly all of the named plaintiffs had been separated from their siblings in foster care, including E.H., who was separated from her sisters and brother at age three, and T.O., who was separated from his older brother at age two. Several of the plaintiffs received no therapy after the State took them into custody, despite evidence of sexual abuse by their biological parents.
The complaint described inappropriate and unsafe placements where children were neglected or even abused. S.S. was placed in a foster home where a “foster parent disciplined him by twisting his nipples until they bled, and another made him eat hot peppers when she suspected he was lying.” I.H. was put in a foster home where a boy who lived in the home raped her. H.C.J.D. was left for over two months in an adult psychiatric hospital because the State, in its own words, couldn’t find a “more appropriate” placement for him. L.M., a toddler, was placed with a grandparent whom the defendants were warned had a history of sexually molesting children.
In March 2000, the plaintiffs filed a second amended complaint, adding class-wide claims and seeking injunctive relief to change the system. In June 2001, the court certified the case as a class action on behalf of all foster children who were then, or would in the future be, in DSHS’s custody and who had been put in three or more placements. In late September 2001, the parties settled the named plaintiffs’ damages claims for a total of $1.3 million, with each of the thirteen named plaintiffs receiving $100,000 to be placed into a trust for their benefit. A seven-week jury trial commenced in October 2001 and resulted in a verdict for the plaintiffs.
The case went up to the Supreme Court of Washington, which rendered a decision on December 18, 2003. The Supreme Court of Washington unanimously ruled that foster children have a substantive due process right “to be free from unreasonable risk of harm, including a risk flowing from the lack of basic services, and a right to reasonable safety.” The Court further agreed with the plaintiffs’ position that the State’s actions were to be judged against the “professional judgment standard” rather than the “deliberate indifference” standard forwarded by the defendants. The Court explained, “Foster children are entitled to a high standard. . . . Foster children need both care and protection. The State owes these children more than benign indifference and must affirmatively take reasonable steps to provide for their care and safety.” Nevertheless, the Court found error in the instructions that the jury had received at trial. The Court vacated the jury verdict and sent the case back to the trial court for further proceedings.
The parties then began mediation with the support of outside mediators. On July 31, 2004, the parties signed a proposed settlement, which the court approved in November 2004. The settlement agreement contained broad goals in the six major areas targeted by the Braam lawsuit: placement stability, mental health, safe and appropriate placements, foster parent training and information, sibling placement, and services to adolescents. The agreement called for a seven-year implementation term, with the court retaining jurisdiction to enforce the agreement and even to order funding expenditures if necessary.
The Braam settlement also contained an important innovation: the use of an independent monitoring panel to develop benchmarks for the State, to create professional standards, and to oversee compliance. The multi-disciplinary panel was comprised of five national child welfare experts and would receive no state funding, to ensure its true independence. The panel solicited input from stakeholders, including foster parents and young people in the child welfare system, and held regular public meetings.
In March 2006, the Braam panel released the much-anticipated first monitoring report, which found that DSHS had not completed 32 of the 45 action steps required. After subsequent monitoring reports continued to show the State falling far behind its benchmarks, the plaintiffs filed an enforcement motion, and in June 2008 the court ordered the defendants to show “demonstrable” progress on the settlement within the next several months.
As the end of the seven-year settlement term approached and it was clear the State would not meet all benchmarks, the parties returned to the negotiation table. On October 31, 2011, the parties filed a “Revised Settlement and Exit Agreement” with the court. The revised agreement laid out 21 reforms covering the same substantive areas covered by the original Braam settlement, with an expiration date of December 31, 2013.
Subsequent monitoring reports showed promising change, coupled with continued shortcomings in certain areas. By 2011, for the first time, the State met the goal that more than 90% of foster children should experience two or fewer placements in their first two years in care. The number of children receiving monthly, face-to-face visits from their social worker rose from 11% in 2008 to 82% in 2011. Annual screening for substance abuse and mental health needs rose from 46% in 2007 to 91% in 2011. The oversight panel’s final report, released June 2013, showed DSHS in full compliance with 12 of the 19 outcomes for which data was reported in that period. After the panel disbanded, as provided for in the revised agreement, the State continued to provide data to plaintiffs’ counsel for monitoring. By 2017, the State had met full compliance with 19 of the 21 outcomes in the revised agreement, falling behind in two areas related to runaway foster youth. After the court refused to release the State from obligations under the last two outcomes, the parties engaged an expert to analyze data and develop improved outcome measures to prevent running away and to shorten the time youth go missing. As explained by NCYL attorney Bill Grimm, “This work is not done until we address the most vulnerable of the already highly vulnerable population of foster youth.”
The Braam plaintiffs were represented by NCYL, Columbia Legal Services, and attorney Tim Farris, of Brett & Daugert PLLC.