The trial between the state of Oregon and the advocacy group suing the state over its mistreatment of kids placed in foster care has been delayed as the two sides near a settlement agreement.
The trial, where the state was expected to defend its beleaguered child welfare system, was scheduled to start on Monday in Eugene. After about five years and spending upwards of $18 million of taxpayer money, it seems settlement talks have finally gained traction. The final settlement deal is due May 17.
Melissa Roy-Hart, a spokeswoman for Disability Rights Oregon, said in an interview earlier this week that the amount of money that has gone into fighting the case instead of changing policies inside the child-welfare system has been disheartening.
”Not just money, but energy and time,” Roy-Hart said.
Department of Human Services Director Fariborz Pakseresht, Child Welfare Program Director Marilyn Jones and Child Welfare Treatment Program Manager Sara Fox testify in front of the Oregon Senate Committee on Human Services on Oregon foster children in out-of-state facilities on April 11, 2019. After about five years and spending upwards of $18 million of taxpayer money, it seems settlement talks have finally gained traction as a trial scheduled for Monday has been postponed.
Kaylee Domzalski / OPB
In 2019, a national advocacy group filed a class-action lawsuit against the Oregon Department of Human Services, alleging the state mistreats children in its foster care system and has failed to fix glaring problems. The nonprofit A Better Childhood filed the lawsuit along with Disability Rights Oregon and lawyers from the firm Davis Wright Tremaine.
Related: Out Of State, Out Of Mind
The goal of Wyatt B v. Kotek, the case that was set to begin in federal court in Eugene on Monday, is to hold DHS accountable and transform the state’s child welfare system, according to Marcia Lowry, the executive director of A Better Childhood. Lowry has seen similar lawsuits in other states prompt large, systemic changes.
The lawsuit claims the state continually places children in foster care in inappropriate homes and facilities, has shipped them out of state where they were placed in for-profit congregate care programs with a litany of problems or abandons them so they wind up homeless.
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“There are thousands of children for whom the state of Oregon has assumed responsibility and, for many, is often their only parent,” the lawsuit reads. ”And it is, has been, and continues to be a constitutionally inadequate parent, revictimizing already vulnerable and innocent children.”
The state hired a private law firm, Markowitz Herbold, to represent Gov. Tina Kotek and the state Department of Human Services in the case. David Markowitz did not return a call for comment this week.
In 2019, when Lowry first looked into Oregon’s child welfare system, she said at the time, she walked away with some clarity: There was no question the system was further harming already vulnerable and often traumatized children.
More recently, Lowry said Oregon’s current child welfare system does poorly when compared to federal standards, especially when it comes to how often children are moved from place to place and rates of abuse.
“The state has a high rate of maltreatment, which is the most serious thing that can happen,” Lowry said.
Related: Oregon continued to put foster kids in hotels for years, defying legal settlement
It was disappointing, Lowry said previously, that the state and advocacy groups could not agree upon necessary improvements before taking the case to trial.
In the past couple of weeks leading up to the trial, the law firm has focused its attention on one legislator with a long track record of calling for change at the agency.
The law firm issued a wide-ranging subpoena asking for state Sen. Sara Gelser Blouin’s emails with journalists, lawyers, foster children and Paris Hilton for the past nine years. The subpoena targets the Democrat from Corvallis, who chairs the Senate Human Services Committee. Gelser Blouin was asked to be a witness in the case and is expected to testify. (The subpoena has specifically requested communication between the lawmaker and reporters at OPB and The Oregonian/OregonLive).
Roy-Hart, with Disability Rights Oregon, said the subpoena felt like retaliation.
“It feels like punishing someone because you don’t want them to testify,” Roy-Hart said.
Markowitz Herbold also filed an additional public records request for Gelser Blouin’s legislative emails. The firm didn’t flinch when legislative counsel told the cost to go through the state Senator’s emails: $3,400.
“Please proceed,” the Markowitz Herbold paralegal responded.
With only a few days before the trial is scheduled to begin, the state of Oregon’s attorneys also tried to disqualify the judge from presiding over the case. U.S. District Court Judge Ann Aiken denied the motion, finding no basis to recuse herself. The state argued unsuccessfully that Aiken has said the state’s child welfare system has many problems and should therefore recuse herself.
It’s often difficult for the public to know what is happening in the state’s child welfare system, in part because child privacy laws were created to protect children. But in the past, the agency has used those same laws to delay sending public records requests in a timely fashion or deny information entirely.
This trial was expected to be the first opportunity where both state higher ups would be testifying in the same venue as children who spent decades in the system. Fairborz Paksheret, the head of the Department of Human Services, is expected to testify, as are numerous children.
Roy-Hart with Disability Rights Oregon said this trial would be the first time so many children would have a chance to voice their stories.