Landmark 24-year lawsuit resolved after Washington state achieves key benchmarks within foster care system

Children in state's care have their rights recognized; Reforms mark progress, but work remains to be done

FOR IMMEDIATE RELEASE

SEATTLE — After more than 20 years of dedicated advocacy by a legal team that includes the National Center for Youth Law and Columbia Legal Services, the landmark class action lawsuit, Braam v. Washington, has been resolved. The suit, which concerns the treatment of children in Washington’s foster care system, led to historic changes in how the State treats children in its custody, as well as court recognition that children in foster care have important rights to reasonable safety and to be free from risk of harm. 

Braam v. Washington was initially filed in 1998 on behalf of 13 foster youth to improve the conditions of Washington's foster care system. This year, the State demonstrated compliance with the final remaining benchmarks outlined in a settlement agreement it reached with the plaintiffs, represented by legal counsel including the National Center for Youth Law and  Columbia Legal Services. The State demonstrating compliance with the final benchmarks, which were focused on reducing the number of children missing from foster care, allowed for the recent dismissal of the historic case.

Over the past two-plus decades, the suit led to groundbreaking structural reform within the State's foster system. These reforms include improvements in the areas of monitoring and oversight, decreased placement changes, increased placements with siblings, and annual health screens. In addition, because of the lawsuit, in 2003 the Washington Supreme Court recognized for the first time the substantive due process rights of children in foster care in the State “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 also found that “the State, as custodian and caretaker of foster children, must provide conditions free of unreasonable risk of danger, harm or pain, and must include adequate services to meet the basic needs of the child.” 

“Braam shined a light on the risk and harm children faced in a system meant to protect them,” said Merf Ehman, Executive Director at Columbia Legal Services. “Even when it seemed impossible, the children in this case, and the lawyers working with them, imagined a system where children’s safety and well-being were foremost. Systemic change like this requires a shared vision and unrelenting hope — even if it takes decades. We are so grateful to the children who took this on.”

A Historic Fight for Rights

Braam v. Washington alleged the State violated the Constitutional rights of youth in foster care, as well as several state statutes and regulations. In particular, the suit focused on the frequency of placement changes for youth within the foster system, the unsafe or inappropriate nature of some of these placements, the separation of siblings in foster care, and the lack of mental health services and other services and supports for youth and families. Family separations, in particular, impacted Black and Indigenous families, families with disabilities, and families from lower economic backgrounds at disproportionate rates.

The 13 children at the center of the lawsuit, who represented a class of children in the State’s care, experienced a wide range of harms. One plaintiff was moved about 20 times in a 2.5-year period before they were even 5 years old, another experienced 45 different placements during her time in foster care, and nearly all the plaintiffs were separated from their siblings during their time in care. Several of the plaintiffs received no therapy or support services after being taken into state care, despite evidence of prior sexual abuse.

In 2001, after a seven-week trial, a jury found that the State had violated the children's constitutional rights, causing them harm. The State appealed and the case went before the Washington Supreme Court. In 2003, the Supreme Court unanimously upheld the plaintiffs’ arguments on the nature and extent of the constitutional rights of children in foster care, rejecting the State’s contentions that children in foster care have no constitutionally protected rights. The Court nonetheless sent the case back for retrial on certain other legal and evidentiary issues. 

The parties subsequently reached a first settlement agreement, which led to the formation of an oversight panel, composed of child welfare experts, to monitor the state's compliance with the settlement agreement and to make recommendations for improvement. In 2011, the parties agreed to a revised settlement agreement, which set forth 21 key outcomes that the State was required to come into compliance with in order to exit the settlement. These related to ensuring: 

• Children in out-of-home care receive monthly health and safety visits;
• Reduced caseloads for caseworkers;
• Annual mental health and substance abuse screenings for youth in out-of-home care;
• Investigations of any referrals that allege abuse or neglect of children in out-of-home care;
• Children are placed with siblings in out-of-home care whenever possible;
• Children placed apart from siblings are afforded at least two monthly visits or contacts with siblings; and
• Increased supports for licensed caregivers.

By 2017, two outcomes remained enforceable, both related to children missing from foster care.  The parties agreed to revised outcomes in this area to more accurately reflect the experiences of children missing from care. Defendants issued a report this year that demonstrated compliance with the final of these outcomes; because no enforceable outcomes remained, the parties agreed to dismiss the case.

Still Seeking Improvement

While the resolution of Braam v. Washington marks a milestone in the reform of the state's foster care system, many issues remain.

The National Center for Youth Law, along with co-counsel Disability Rights Washington and Carney Gillespie PLLP, brought a separate class action lawsuit — D.S. v. DCYF — against the state of Washington in January 2021 on behalf of Disability Rights Washington and three young people in Washington's foster care system, representing themselves and other similarly situated youth. The named Plaintiffs, all of whom identified as having behavioral health or developmental disabilities, were routinely shuttled from hotels to state offices to other one-night stays, “essentially rendering them homeless for extended periods.” The suit also alleged that youth end up in institutions, some of them hundreds of miles from their families in non-therapeutic, locked facilities that further traumatized them.

A federal court approved a settlement in the D.S. case this year. 

In the settlement, the State has agreed to make several system improvements, such as an Emerging Adulthood Supported Housing Program for older youth who would prefer to live more independently, a statewide “Hub Home” program to provide resources for “satellite” families caring for foster children, and a Professional Therapeutic Foster Care program to help children with intensive behavioral health needs stabilize and reunify with their families. The agreement also requires the State to work with stakeholders and individuals with lived experience to expand Kinship Engagement Units to find and engage extended families, improve family group planning practices to better support preferences and decisions of children and their families, and create new referral and transition practices to better support children when changes in their lives happen.

The National Center for Youth Law remains committed to ensuring that children's rights are recognized and respected. These lawsuits aim to spur healthy reform for a system that has harmed youth in the state's care for far too long. 

Columbia Legal Services continues to advocate for laws that advance social, economic, and racial equity for people most harmed by systems of oppression — particularly incarceration, juvenile detention, and immigration.