Five years ago, a national advocacy group and a local nonprofit filed a class-action lawsuit against the Oregon Department of Human Services. They didn’t want money. They wanted better care for kids placed in foster care, less abuse and more stable homes.
On Thursday, the two sides reached an out-of-court settlement agreement in the Wyatt B. v. Kotek case.
The settlement stipulates Disability Rights Oregon, A Better Childhood, the national group, and the state will agree upon a “neutral,” an expert to oversee the foster care system and work with the individual to improve the child-welfare system, primarily by reducing the rate of mistreatment and improving the quality of placements.
The lawsuit was brought on behalf of 10 kids. In the years spent fighting to defend its beleaguered child welfare system, five of the kids have aged out of the child welfare system charged with raising them. One of the kids is now in a state prison. One is living in their car. Three others are still “struggling to transition into adulthood,” according to information from Disability Rights Oregon. Two of them now have children of their own.
Oregon child welfare officials have spent years struggling to find appropriate places to house the state’s most vulnerable children.
Illustration by Kristyna Wentz-Graff / OPB
“When I think about the amount of time and amount of money that has been spent litigating this it is really infuriating,” said Emily Cooper, the legal director with Disability Rights Oregon.
It’s unclear how big the bill to taxpayers will be when the final tab for this court case is tabulated. The state hired the law firm Markowitz Herbold to defend its child welfare system. The latest contract with the firm set the maximum compensation limit at $19.5 million. The state will likely also be on the hook to pay the plaintiff’s attorneys, which include lawyers with Disability Rights Oregon, A Better Childhood, Rizzo Bosworth Eraut and Davis Wright Tremaine.
So far, the state has paid approximately $18 million of taxpayer money to defend its trouble-ridden child welfare system.
“There is a big part of me that wishes fervently we could have settled this in year one,” Cooper said, adding that plaintiffs knew if they couldn’t settle, the fight would likely continue for years with possible appeals.
One teenager who had spent time in foster care and who was set to testify in the trial said one of her state-certified placements was a shelter where there was never enough food and she wasn’t allowed to leave her room at night, even if she needed to go to the bathroom.
The now 19-year-old was worried about revealing her name because she still receives state benefits and was worried Oregon would retaliate.
“I’ve lived in many different homes. Different kinds of placements. I had a lot of different caseworkers,” she said. “The system has been broken for so long. (The state) is literally labeled as kids’ guardians because the parents aren’t fit. But they don’t currently feel fit to have that role.”
The two sides must select the “neutral” expert by May 31, 2024. The person must have experience with child welfare systems and federal government oversight processes. Starting in 2026, the person chosen to oversee the child welfare system must annually review the progress the state’s Department of Human Services Department is making toward meeting agreed-upon goals, such as lowering rates of abuse and creating more timely professional mental health and medical assessments for the kids in care.
A history of little transparency and lack of accountability
Oregon has spent years struggling to find appropriate placements for the state’s most vulnerable children in its care. And this is not the first time a court has been involved.
In 2023, a federal judge appointed an outside expert to oversee the state’s Department of Human Services after Oregon continued to spend upwards of $25 million to house kids in hotels after they promised to stop the practice in 2018.
The state also quietly sent children to out-of-state facilities where there was widespread mistreatment. The state touted its efforts to end that practice as part of its efforts to improve the system. But they reluctantly halted the practice and only did so after mounting pressure and the death of a child.
Initially, when OPB first broke the news of the practice in 2019, the state wouldn’t say where the children were being sent, citing privacy issues. It became clear children were scattered across 16 states and no one from Oregon’s child welfare system was regularly visiting them.
When stories of abuse began to surface, the state finally went to visit children placed in one Utah facility. Their report painted a rosy picture, noting the young people could “practice yoga and meditate.” The same day, the state of Utah issued a report citing a list of violations at the same facility – from staff humiliating and degrading residents to a youth being put in a chokehold and rendered unconscious after being in a physical altercation with a staff member.
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.
Kaylee Domzalski / OPB
More recently, Oregon’s child welfare system paid a religious nonprofit $2,916 per day for every child placed in unlicensed short-term rental homes. After OPB reported on the unusual arrangement, the state canceled the contract with the provider.
But in a meeting with state lawmakers about the story after it was published, the head of the state’s Child Welfare program Aprille Flint-Gerner told them the story was factually incorrect and said she had requested OPB correct the article. The state had not asked OPB to correct the article. When OPB reached out to the state to see if anything needed to be corrected, a Human Services spokesman answered no.
Rep. Mark Gamba, D-Milwaukie, was on the call with Flint-Gerner, “I was led to believe yes, that they had asked for corrections.”
Marcia Lowry, the executive director of A Better Childhood, said Oregon has a high rate of mistreatment of children.
“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.”
State Sen. Sara Gelser Blouin, D-Corvallis, who chairs the Senate Human Services Committee and was asked to testify said she’s glad the case is being settled.
“I’m disappointed the kids didn’t get a chance to tell their stories in a safe place … It’s important to hear from them,” Gelser Blouin said. “We can’t have a culture of retaliation for speaking out whether it’s real or perceived.”
Fariborz Pakseresht, the director of Oregon’s massive Human Services Department, said in a statement the agreement was a “testament to the progress we have made in child welfare over the past several years and allows us to focus on the important work ahead.”