A sweeping class-action lawsuit — where the state of Oregon spent upwards of $18 million taxpayer dollars defending a child welfare system known for well-documented systemic failures — entered a new chapter on Thursday.
Five years ago, a national advocacy group and a local nonprofit filed a class-action lawsuit against the Oregon Department of Human Services. The request was straightforward: They wanted better care for kids placed in foster care, less abuse and more stable homes.
The two sides reached a settlement shortly before they were expected to go to trial in May in the Wyatt B. v. Kotek case.
But this week, the state held a “fairness hearing” to determine whether the settlement is reasonable. The hearing gave kids who were placed in foster care a chance to speak to the court.
Whitney Rodgers, 24, had been involved in the state system since she was very young.
She noted the government spent millions defending itself in this court case and ultimately said, “yeah, we were failing and our agreement is that we will try to do better.”
Rodgers shared details about several placements, including one residential treatment facility where she said she was repeatedly physically restrained and socially isolated. The staff at the treatment center felt she had too much influence over her peers, she said, and at one point socially isolated her for 11 days over Christmas break with no contact because they felt she was a bad influence.
Leading up to this hearing, the state was expected to hold listening hearings with kids placed in its care. But kids in the system didn’t participate despite wanting to share their stories, Rodgers said. Her peers, she said, were too afraid to speak out since they worried their caseworkers or someone at the state human services agency would retaliate.
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U.S. District Court Judge Ann Aiken asked Rodgers what she did after she turned 18 and aged out of the state’s care.
The young woman’s voice broke when she described some of her activities: She flew a kite for the first time, she got her first stuffed animal and had her first Christmas tree. She touched grass and went hiking. She graduated from college.
Judge Aiken did not not hold back in praising Rodgers or the two other young women who shared their stories.
“Unless the state of Oregon decides to take it seriously and truly listen with transparency to people like you and the people who have the courage … this settlement will fail,” Aiken said.
Whitney Rogers, a foster youth pictured at a hearing a few years ago, described the treatment she received in the Oregon foster care system at a "fairness" hearing this week.
Kaylee Domzalski / OPB
The state, which hired the private law firm Markowitz Herbold to defend itself, tried earlier to disqualify Aiken from presiding over the case. It was one of several unusual and costly moves by the private law firm that racked up millions of dollars in costs on the state’s behalf.
The law firm also issued wide-ranging subpoenas asking for state Sen. Sara Gelser Blouin’s emails with journalists, lawyers and foster children for the past nine years. Gelser Blouin, a Corvallis Democrat, is the chair of the Senate Human Services Committee and has long been an advocate for children placed in foster care. A spokeswoman with Disability Rights Oregon said it seemed to be an effort to intimidate a possible witness in the trial.
David Markowitz, one of the lead attorneys representing the state, declined to comment on Thursday when asked if it was a wise use of taxpayer dollars.
During the hearing, Judge Aiken lamented how drawn out and expensive the court battle became. At one point she called the proceedings “frankly over-lawyered beyond belief.”
“This should have been settled five years ago and spent the money on kids and families,” Aiken said.
Rain Parrish, who is now 22 years old, also testified at the trial in Eugene on Thursday. She told stories of being in placements where she was raped and mentally abused, where food, love and care were withheld.
“The person who is withholding food for you, putting alarms on your doors so you won’t leave your room to go potty … maybe they yell at you, maybe they scream at you,” Parrish said. “They treat you like trash, they might be better than the next home you’re going to. The next one could be twice as bad. The good ones don’t stick around.”
Next steps
As part of the settlement, a “neutral expert” was chosen to oversee the system. The court picked Kevin Ryan to oversee the changes in the state’s child welfare system. He played similar roles in other states, including child welfare in New Jersey, Michigan and Oklahoma. In each state, Ryan told the judge, it was crucial that the governor was involved in making real reforms. He detailed progress in each of the states, including reducing the number of kids who were in foster care, lowering caseloads and reducing mistreatment.
“Everywhere reforms flourish the governor insists on it,” Ryan told the courtroom.
Aiken paused the hearing momentarily to see if Gov. Tina Kotek’s child welfare liaison Rachel Currans-Henry was still on the line. She was.
The judge said it was “very apparent” that there must be a commitment from the governor’s office.
“It also helped to have the Legislature and people who have been highly committed to changes … Those are not your enemies, those are your friends — is that a fair statement,” Aiken asked. “Again, this is only going to work … if the governor expects excellence and to push people for better results for children.”
Aiken seemed to be nodding to the work done by Gelser Blouin, who was sitting in the courtroom, and who has been a persistent voice for reforms in the system and is often pitted against the state’s department of human services and its top officials.
Ryan, the neutral observer, said he is looking forward to his role and will start by listening and absorbing a lot of information. The state and the Department of Human Services have promised to reduce the rate of mistreatment and increase the quality of foster care placements.
Kathleen Strek, an attorney who represents kids in care and who was in the courtroom on Thursday, said she didn’t feel optimistic that the system would change without leadership changes.
“There is a widespread lack of competency, poor supervision, disorganization of resources, they don’t respond timely to children’s needs,” Strek said. “I think the changes need to come from the top and I don’t think leadership understands the needs for changes and I don’t think there’s enough accountability.”
Judge Aiken said if the state gets this right and decides children are the most important priority of the government, there will be a huge difference in education, the costs of budgets, in the number of prisons built and the state’s economy.
Now, Aiken said, it’s time to improve the lives of children in Oregon.