Independent Study on Oklahoma Foster Care Released/Class Action Lawsuit UPDATED
Children’s Rights, who is suing the Oklahoma Department of Human Services for their failures in the foster care system released an independent study on Thursday March 17, 2011. They filed suit in February 2008 and the federal trial is expected to begin in October 2011.
They claim that ” DHS intervention could have prevented the deaths of at least five children who died between 2007 and 2009 of abuse or neglect while in state custody.
Additionally, the study found that:
- It took personnel in the DHS Office of Client Advocacy a month or more to contact one-third of the alleged victims who lived in large group homes.
- DHS Child Protective Services Division investigators failed to take the proper steps to protect 20 percent of the alleged victims in foster care and kinship/family member homes.
- About half of all investigations of foster or kinship/family member homes ignored or discounted credible evidence of abuse or neglect.
- DHS failed to interview nearly a quarter of key sources, including doctors, police and caseworkers.”
Study Puts Blame on DHS for Deaths of Five Children
[Tulsa World 3/18/11 by Gavin Off]
One of those five children cited by Children’s Rights is the subject of today’s REFORM Talk Bittersweet Justice Post .
Update: A Bill passed the House 97-0 and has been sent to the Senate. House Bill 2136 was based on the government’s review of the foster care system, not the independent study by Children’s Rights.
The Bill will add ” background checks on adults living with former foster children and launching full-scale child-abuse investigations after three referrals.” “The bill would require all adults living in a home where a foster child is being reunited with family to undergo national and state criminal background checks.”
Versions of the bill can be seen here.
Better Safeguards for Foster Children in Oklahoma Proposed
[Tulsa World 3/20/11 by Ginnie Graham]
Update 2: DHS whines about cost of defending themselves.
“Oklahoma taxpayers have spent about $4.2 million on attorneys since April 2008 for the state Department of Human Services to defend a class-action lawsuit alleging abusive conditions in the state’s foster-care system, records show.
The suit was filed in February 2008 in federal court in Tulsa by Children’s Rights. The New York-based nonprofit accuses the state of placing foster children in danger because of systemic deficiencies including too many cases per worker, not enough home visits, multiple placements and not enough foster parent training.
DHS is facing a shortfall in the next budget of about $39 million and is considering cutting staffing levels and changing the eligibility standard to receive child-care subsidies.
“It’s unfortunate that funds have to be spent to defend the state against unmerited claims,” said DHS spokeswoman Sheree Powell in an emailed statement. “As long as Children’s Rights continues making claims that lack merit, we must defend the state against them.”
A contract for outside legal counsel was signed by Director Howard Hendrick in March 2008. It states DHS will be billed monthly with attorneys receiving hourly rates ranging from $180 to $200 an hour.
The DHS commission did not take a formal vote on hiring outside counsel or seeking bids for the services, although it receives periodic updates in executive session.
DHS has about three in-house attorneys from its legal division assisting with the lawsuit, Powell said. When the lawsuit was filed, the Oklahoma Attorney General’s Office had 15 attorneys in its litigation division, she said.
The agency cited a “lack of resources” and a need for “resources available from a large firm with experienced counsel in this type of major litigation” in a July 2008 application to the Oklahoma Attorney General’s Office for approval to hire outside attorneys.
Attorneys appearing on behalf of DHS in court have primarily been Bob Nance, who has served as an assistant attorney general and argued before the U.S. Supreme Court, and Don Bingham of Tulsa.
Children’s Rights founder and Executive Director Marcia Lowry has represented her organization with assistance and attorneys also appearing from about four other listed legal firms in the state and internationally.
Invoices from the Tulsa-based Riggs, Abney, Neal, Turpen, Orbison and Lewis law firm show expenditures for 22,502 hours of work for about $3.94 million since March 2008. But “professional courtesy discounts” of about $391,608 are included as a credit.
In addition, about $577,609 is listed as “other” expenses.
Powell said those costs include processing of more than 750 gigabytes of electronically stored information, producing more than 5 million pages requested in discovery and retaining expert consultants.
Two invoices from the Oklahoma City-based firm Crowe & Dunlevy sent in January and February total about $48,593.
Powell said Crowe and Dunlevy is providing consultation and advice and not duplicating services already being provided.
Between July and December 2009, invoices for copy shop services total about $37,313, which was mostly for processing email exchanges between DHS workers.
In the past year, invoices have ranged from $68,700 in April 2010 to $290,700 in February, which is the highest monthly invoice submitted to DHS so far.
Powell said DHS has concerns about settling under a consent decree.
“History has shown that consent decrees entered by Children’s Rights in other states have cost each state hundreds of millions of dollars and lasted for several decades,” Powell said. “These decrees simply shifted highly contentious litigation from issues of liability to issues of compliance, contempt and federal court receivership.
“Many states have been forced to enter into ill-considered consent decrees, to the detriment of both taxpayers and the children in their care, because they did not have the resources to defend themselves or respond to overwhelming discovery requests.”
Since 2005, more than $47 million has been spent on private attorneys and law firms performing services for Oklahoma agencies and boards, according to reports filed with the Attorney General’s Office and in previous news reports.
DHS is among the top spenders, along with the Transportation Department, Grand River Dam Authority and universities.
This concern led to the proposal of the Legal Services Reform Act, House Bill 1223, which has passed the House and Senate and is awaiting approval of amendments.
The bill would require agencies to go through a bidding process after receiving approval from the attorney general. Also, all outside attorney contracts would have to be placed on the agency’s website within four months.
At the close of each case, the attorneys would have to provide details such as hours, fees and expenses, and an hourly rate charge would be capped at $1,000.
Attorney General Scott Pruitt has said he appreciates the effort to step up transparency but is concerned about exemptions to the bill. A recently passed amendment would exempt higher education institutions, which is not provided under current law.
In a press release, Pruitt said such an exemption would be a “step backward” in keeping the public informed.
The class-action foster-care trial is expected to begin in October.”
Okla DHS spends $4.2M on private lawyers to defend foster care lawsuit over abuse allegations
[Greenfield Reporter 5/15/11 by Ginnie Graham/Tulsa World]
Update 3: “Several commissioners at Oklahoma’s Department of Human Services recently admitted under oath in depositions for the class-action lawsuit that they never read or only skimmed the taxpayer-funded $420,000 audit commissioned by the state Legislature to help the agency reform its child-welfare services.
Okla. DHS panel pays scant attention to lawsuit
[The Houston Chronicle 9/11/11 by Randy Ellis, Nolan Clay, and Robbie Trammell (all of The Oklahoman)]
Update 4: “A federal judge decided Tuesday to keep the class certification in a lawsuit against the Oklahoma Department of Human Services for alleged abuses in its foster-care system but continues to hear arguments in a summary judgment motion.
U.S. District Judge Gregory Frizzell heard arguments Monday by DHS attorneys to de-certify the class based on a June Supreme Court decision on a sex discrimination suit against Wal-Mart.
The lawsuit was filed by nine foster children in February 2008 and it was expanded to a class-action in May 2009.
DHS had argued, using the recent Supreme Court ruling, that the class lacked common traits.
Frizzell ruled in favor of the keeping the class certification, citing support for evidence based on two question to examine at trial:
*Whether DHS has a policy or practice of failing to adequately monitor the safety of foster children, causing significant harm and risk or harm to their safety, and
*Whether DHS is subjecting foster children to “an impermissible level” of risk of abuse and neglect while in state custody.
DHS has also asked for a summary judgment, arguing the plaintiffs have not generated evidence during discovery to support their claims and that DHS has significantly changed its policies and procedures since the suit’s filing.
Arguments continue Tuesday afternoon.
Also, motions to limit the scope of evidence at trial are pending.
Trial is set for February.
The lawsuit points to high caseloads as a reason leading to abuses, and it alleges the commission overseeing DHS has failed to provide enough oversight to protect children.
“I understand they serve as volunteers, yet they have a duty,” Frizzell said. “Ultimately, the responsibility is that of the commission.”
Attorney Bob Nance, representing DHS, noted that the commissioners are volunteers and have the responsibility of setting policies and rules.
“And they can make inquiries,” Frizzell said. “I find it astounding that in three years no commissioners can recollect at a meeting an inquiry of caseworker caseloads.”
“I’m not sure if no commissioner said that,” said Nance.
“Then point to it in the record . . . We’ve been at this for three years,” Frizzell said.
Nance argued that it would be easy to play “gotcha” with commissioners on specific facts, pointing to the vastness of the agency and volunteer nature of the job.
“The fact they don’t ask what the caseloads are has not caused any harm to the children,” Nance said.
Depositions of commissioners for the lawsuit found that none of the commissioners were told by DHS officials of the loss of accreditation in child welfare, which is a state law.
Some commissioners also testified they had not read or only skimmed a critical legislative audit and they had not read or kept up with the federal lawsuit.
Commissioners came under public scrutiny earlier this year during some high-profile child death cases where DHS workers were involved.
Gov. Mary Fallin appointed two new members, former Oklahoma City district attorney Wes Lane and businessman Brad Yarbrough, who took over as commission chairman last month.
Commissioners Steven Dow and Aneta Wilkinson attended the hearing Monday. All commissioners were present Tuesday at the request of the court as part of the settlement conference, which is not open to the public.”
Judge to keep class-action certification in DHS foster-care suit
[Tulsa World 11/15/11 by Ginnie Graham]
Update 5: “A Tulsa federal judge threw out two of three civil rights claims on Thursday in a class-action lawsuit that seeks changes in Oklahoma’s foster-care system.
The plaintiffs, however, claimed to be happy with the decision because their “core claim” is still alive.
U.S. District Judge Gregory Frizzell allowed a cause of action dealing with foster children’s due process rights to be free from harm – and risk of harm – to survive, but he granted the defense’s motions for summary judgment on two other constitutional claims.
The lawsuit was filed against various Oklahoma Department of Human Services officials in February 2008 by Children’s Rights, a national child-advocacy group based in New York, and five law firms.
The original plaintiffs were nine children who allegedly had suffered in DHS placements. The case has since become a class-action lawsuit, with thousands of children in DHS custody as plaintiffs.
“This decision is a huge victory for Children’s Rights as well as the abused and neglected children in Oklahoma’s DHS,” Marcia Robinson Lowry, executive director of Children’s Rights, said Thursday evening. “The federal court in Oklahoma has sustained our core claim in today’s decision, that children are either being subject to harm or at risk of harm while in state custody.”
However, Donald Bingham, an attorney for the defense, said it is important to note that Frizzell did not rule on the merits of the case, finding only that the plaintiffs’ side had introduced enough evidence that will “entitle it to its day in court” in February.
Frizzell wrote: “The court concludes plaintiffs have presented proof sufficient to create a genuine dispute of material fact whether defendants’ policies, practices and procedures violate plaintiffs’ substantive due process right to be reasonably safe from harm.”
Frizzell found that the “plaintiffs have presented evidence – albeit disputed – that defendants’ oversight of the DHS foster program is so inadequate as to give rise to a question of material fact whether defendants have abdicated their professional judgment.”
Also, the judge wrote that experts on both sides of the case, as well as senior DHS managers, “all agree that excessive caseloads, missed visits between case workers and children and inadequate investigations of abuse and neglect pose a threat to the safety of foster children and that inadequate placement options, excessive use of shelters and frequent placement moves threaten the psychological and emotional health of children.”
Frizzell wrote that plaintiffs had presented evidence that from 2002 through 2008, the reported rate of abuse or neglect of Oklahoma foster children has been 1.54 to 3.97 times greater than the national rate.
Oklahoma had one of the five highest reported rates in the country during that time, Frizzell wrote.
The judge threw out the plaintiffs’ claim that the defendants’ policies, practices and procedures interfere with the children’s First, Ninth and 14th Amendment liberty and privacy rights.
The plaintiffs asserted that, while DHS policy requires visits between parents and children as well as placement of siblings together whenever possible, the agency’s records from 2008 to 2010 reflected that less than 15 percent of visits due between foster children and their biological parents were completed. The plaintiffs also alleged that DHS has a routine practice of separating siblings in custody.
Frizzell wrote that granting the defense’s motion for summary judgment on the claim was appropriate because, while individual children can establish acts by DHS workers that have violated their right of familial association, a class-wide deprivation cannot be proven.
The judge noted that the DHS officials sued in the case do not deal with foster children directly. He wrote that, at most, the evidence might support a conclusion that the defendants failed to adequately supervise workers who were charged with the responsibility of ensuring that parent-child visitation occurred.
Frizzell also ruled for the defense on a claim alleging violations of Oklahoma statutes pertaining to the procedural rights of foster children.
The judge wrote that it is impossible for the class as a whole to establish a key element of such a claim because most children’s procedural due process rights have not been violated.
Frizzell noted that while the plaintiffs argue that all members are “at risk,” they cited no legal authority that such a status meets the requirements for establishing a violation of relevant Fifth and 14th Amendment rights.
The trial, which won’t involve a jury, is set for Feb. 21 and is expected to last about four weeks.
Neither side plans to appeal Thursday’s mixed ruling.”
Judge rules two of three civil rights claims lacking in foster care case
[Tulsa World 12/2/11 by David Harper]
Update 6: “A Tulsa federal judge has rejected another attempt to dismiss a lawsuit that seeks widespread reform of the Oklahoma child welfare system, finding that at least most of the measures requested by the plaintiffs do not interfere with state court proceedings.
U.S. District Judge Gregory Frizzell rejected on Friday the motion by Department of Human Services officials who argued that the relief sought by the plaintiffs is improper because every child involved in the class-action case is already part of ongoing juvenile proceedings in Oklahoma district courts.
The federal lawsuit was filed in February 2008 by Children’s Rights, a national child-advocacy group based in New York, and various law firms.
The original plaintiffs were nine children who allegedly had suffered in DHS placements. The case has since become a class-action lawsuit, with thousands of children in DHS custody involved.
The plaintiffs are seeking changes on a variety of fronts, including caseload limits, education and training, additional placement options for foster children, improved monitoring, quality assurance, and the appointment of a neutral monitor.”
“As part of Friday’s ruling, Frizzell used a standard established by the U.S. Supreme Court in 1982 in examining each of the plaintiffs’ requests for relief.
Lowry said, “The court refused to reject any of the remedies we have sought to protect the state’s children. The state asked the court to reject all of these remedies. They lost resoundingly.”
With Friday’s decision, the case remains on track for a nonjury trial before Frizzell beginning Feb. 21.
DHS spokeswoman Sheree Powell said Friday that the motion ruled upon by Frizzell on Friday was filed because the agency believes that the measures sought by the plaintiffs interfere with the children’s individual service plans.
Powell said that while Frizzell disagreed with DHS’ position on the issue, “we respect his decision.”
She said the far more significant decision occurred earlier this month when the judge narrowed the scope of the lawsuit.”
Judge rejects DHS’ motion to dismiss foster-care system lawsuit
[Tulsa World 12/16/11 by David Harper]
Update 7: On Tuesday December 20,2011 an executive session of the oversight commission of the OK DHS will be held to determine whether the class action suit should be settled.
DHS foster-care abuse settlement to be considered
[Tulsa World 12/20/11 by Ginnie Graham]
Update 8: Despite several meetings, the Contingency Review Board – composed of Fallin, House Speaker Kris Steele and Senate President Pro Tem Brian Bingman – voted to reconvene its executive session at 2 p.m. Thursday, December 29, 2011.
“The board is discussing the terms of settling the lawsuit brought in February 2008 by New York-based child advocacy group Children’s Rights. The suit, filed in the Northern District of U.S. District Court, seeks reforms in the child welfare division of the state Department of Human Services.
The board is required by state law to meet when the Legislature is not in session to vote on any settlements that may cost taxpayers at least $25,000.
Fallin said it is in the best interest of Oklahoma to avoid a costly legal battle.
“But it has to be sensible,” Fallin said after the meeting, which ended at 6 p.m. Wednesday.
Fallin said several officials were called in for discussion, which she described optimistically. She said the goal “first and foremost is taking care of the children of Oklahoma, especially our most vulnerable children. Second is looking out for the best interest of the state of Oklahoma.”
Tulsa attorney Fred Dorwart, who is representing Children’s Rights, said it is a good sign that lawmakers are taking time on this decision.
“We understand it is a major change in the system and has to be considered,” Dorwart said. “And they are considering this fully.”
A pretrial conference is set for Jan. 6 with the nonjury trial scheduled to start Feb. 21.
“If the settlement is not voted on tomorrow, then we’ll go to trial Feb. 21,” Dorwart said. “But we understand they need time to fully consider this.”
No monetary awards will be given to the class or nine original plaintiffs.
Children’s Rights has argued reforms will be more cost-efficient.
“It’s not about money. It’s about management and it’s about policies and procedures,” Dorwart said. “It will involve accountability and measurements of the agency in key indicators of its foster-care system.”
A U.S. magistrate has placed an order of confidentiality on the settlement. Terms will be released only if the Contingency Review Board approves it and representatives of the parties sign the agreement.
The DHS commission spent five hours in executive session Dec. 20 discussing a proposed settlement. The oversight board voted 6-3 for the settlement, with commissioners Jay Dee Chase, Aneta Wilkinson and Richard DeVaughn voting against it.
In court filings, Children’s Rights claimed that foster children were scalded in bath water, sexually molested, beaten with tree switches and belts and hit in the face. It argues these abuses are systemic problems, not isolated incidents.
U.S. District Judge Gregory Frizzell agreed the suit should be expanded into a class action, which occurred in May 2009. The class is defined as current and future foster children. DHS has more than 8,000 children in foster placements.
The original plaintiffs ranged in age from 4 months to 16 years and had suffered abuse while in DHS foster-care placements.
Children’s Rights has been seeking reforms such as caseload limits, education and training for foster families and staff, additional placement options for foster children, improved monitoring, quality assurance and appointment of a neutral monitor.
DHS has spent about $7 million on outside attorneys to defend the lawsuit, and commissioners approved another $2 million for future costs. Because it agreed to the settlement, DHS likely will have to pay some or all of the plaintiffs’ legal fees.
Children’s Rights has launched legal challenges seeking improvements in child welfare systems in at least 15 states and jurisdictions since 1995, with all but two ending in judicial consent orders that settled the cases. Legal fees have included $10.5 million in Georgia and $6.5 million in Michigan.
The Oklahoma lawsuit has more than 775 docket entries, more than any other case the organization has litigated, said Children’s Rights Executive Director Marcia Lowry.
Commissioners came under criticism earlier this year after some high-profile child deaths where DHS workers were involved.
Fallin appointed two new members – former Oklahoma County District Attorney Wes Lane of Oklahoma City and businessman Brad Yarbrough – who took over as commission chairman in October.
A major point mentioned in judicial orders and disputed among the parties is caseload per DHS worker.
Despite having a federally recognized tracking system, DHS does not have a definitive number for average caseload. Estimates show that 68 percent of foster children have workers with 20 or more cases and that 15 percent have 30 or more cases.
Accrediting body standards call for no more than 18 children per caseworker, or eight per caseworker in the case of special needs children. ”
Decision on settling DHS suit delayed
[Tulsa World 12/29/11 by Ginnie Graham]
Update 9 : “Changes were made Thursday by the governor and Oklahoma’s two legislative leaders that could jeopardize a proposed settlement in a federal class-action lawsuit over the Department of Human Services’ care of fosterchildren.
The action by the state Contingency Review Board, which consists of Gov. Mary Fallin, House Speaker Kris Steele and Senate President Pro Tem Brian Bingman, sends the settlement proposal back to the governing board of DHS and to Children’s Rights, a New York-based group that sued DHS officials in 2008.
“As of this moment, we are continuing our preparations for trial,” said Marcia Lowry, executive director of Children’s Rights, in a telephone interview. “We have obligations to file certain documents with the court in preparation for trial. We are planning to meet those deadlines.”
DHS commissioners, who voted last week to settle the case after meeting in executive session for five hours, could meet next week to consider the revisions, a DHS spokeswoman said. Terms of the settlement have not been disclosed.
Fallin, Steele and Bingman voted to accept the settlement based on all parties agreeing to their amended draft of the compromise and settlement agreement. They voted on the changes, which were not made public, after meeting for nearly 90 minutes in a closed, executive session Thursday. They met for nearly three hours Wednesday in executive session to discuss the settlement.
“This is a golden opportunity to improve the agency under Oklahoma’s terms instead of a court’s terms,” said Steele, R-Shawnee.
Bingman, R-Sapulpa, said the board’s action was “a step in the right direction.”
“The most important thing in this settlement agreement is a focus on improving the quality of services provided for the children of Oklahoma.”
State law calls for the Contingency Review Board to consider settlement agreements of more than $250,000 when the Legislature is not in session; lawmakers return Feb. 6. Approval by the board was a condition to the settlement goingforward.
“Usually a settlement agreement is between two parties,” Lowry said. “I find this an unusual situation. … The CRB has approved something else. I don’t know what it is. I don’t know whether it’ll be satisfactory to plaintiffs or not, but it’s not what the (DHS) commission approved.
“If it’s not satisfactory to us, we’ll tell the state we can’t settle on these terms,” Lowry said. “We had terms that we could enthusiastically settle on. Whether this will constitute terms that we feel serve our clients’ interests or not, we don’t know.”
DHS likes changes
Sheree Powell, communications director for DHS, said the agency is pleased with the revised settlement agreement.
“We’re looking forward to working with the commission to look at the changes the CRB has recommended today,” she said.
“We have a very strong defense,” Powell said. “We were ready to go to court in February if need be. That just shows that the strength of our defense, the passion that our child welfare workers bring to their work every day has put us in this very enviable position and that’s why we’re really looking forward to this resolution.”
Fallin called Thursday’s action a positive step. She said she is optimistic DHS commissioners and Children’s Rights will approve the changes.
“I feel like all parties have worked in good faith,” she said. “They have spent a tremendous amount of time going back and forth negotiating different points of the settlement. That’s what a settlement is about — it’s negotiations. There are some things that we agreed to, some we didn’t; some things they agreed to, some they didn’t.”
Judicial approval
If the DHS commissioners and Children’s Rights agree to the changes, the settlement agreement will be sent to U.S. District Judge Gregory K. Frizzell, who will schedule a hearing on the proposal. If he finds the agreement to be in order, he would approve it and it would be implemented.
If either the DHS commissioners or Children’s Rights fail to approve the changes, the matter will go to trial. A pretrial hearing is set for Jan. 6. A nonjury trial is scheduled to start Feb. 21. The trial could take at least a month.
If the revised settlement is not approved, settlement talks could continue even after the trial starts.
“Cases settle up to and even during trial,” Lowry said. “But the further in the parties get, the more involved they become in the preparation of the case.””
Oklahoma leaders change proposed DHS settlement deal
[The Oklahoman 12/30/11 by Michael McNutt]
Update 10: “A three-year legal battle has finally come to an end. The state will settle a federal class action lawsuit against its child welfare agency.
A child advocacy group, Children’s Rights, teamed up with a Tulsa law firm to sue DHS in 2008. Their basic claim was that the state wasn’t protecting the children in foster care from further harm.
The state fought this lawsuit for the last three years, but two weeks ago the DHS commission decided to settle. The settlement agreement needed the approval of the state’s top lawmakers, including Governor Fallin.
The settlement agreements calls for DHS to meet certain standards and outcomes. A panel of three child welfare experts from outside of the state will make sure that DHS is meeting its goals for the next four years.
Chairman’s statement is here.Key Provisions of the settlement:
“Key Provisions of the Settlement Agreement
The Settlement Agreement provides that the DHS will develop a plan that will identify specific strategies to improve the child welfare system in a number of key areas (see below). The plan will also identify specific structural and/or organizational changes necessary to implement the strategies and the anticipated cost of implementation. Key performance areas that will be addressed include:
(1) child abuse and neglect in care,
(2) the number of foster homes available for children in need of therapeutic care,
(3) the number of foster homes available for children not in need of therapeutic care,
(4) visitation of children by case workers,
(5) continuity of visitation by the same case worker,
(6) on an annual basis, the average number of placements experienced by a child two years old or older, excluding the ten percent of children with the least number of changes in placement and the ten percent of children with the highest number of changes in placement,
(7) the actual number of placements for each child two years old or older that is in the ten percent of children two years old or older with the highest number of changes in placements,
(8) on an annual basis, the average number of placements experienced by a child under two years old, excluding the ten percent of children with the least number of placements and the ten percent of children with the highest number of placements,
(9) the actual number of placements for each child under two years old who is in the ten percent of children under two years old with the highest number of placements,
(10) as of March 31 and September 30 of each year, the number of children in shelters delineated by even ages (i.e., younger than 2 years, 2 years old to 4 years old, 4 years old to 6 years old, … ),
(11) during the same six month time period (April through September and October through March), the average stay in a shelter for each age group identified in subparagraph (10), excluding the ten percent of children with the shortest stay in a shelter and the ten percent of children with the longest stay in a shelter,
(12) the actual length of stay for each child that is in the ten percent of children with the longest stay in a shelter,
(13) permanency (i.e., the child exits the system with a connection to a permanent family),
(14) adoption, including adoption failure rates, and
(15) caseload.
The plan will be created by a team consisting of DHS staff, members of the Commission, representatives of the Governor’s Office and members of the Legislature. The settlement provides that three national experts, termed as “Co-Neutrals”, will be included in the approval and monitoring of the plan (Kathleen Noonan, Kevin Ryan, and Eileen Crummy whose bios are attached). A draft of the plan will be submitted by March 30, 2012 to the Co-Neutrals. They will act as arbiters of any disputes between the parties to and arising out of the Settlement Agreement. The expense of the Co-Neutrals will be paid by the DHS.
The DHS and Co-Neutrals will identify a national data expert who will establish baseline measures and target outcomes for each of the performance areas.
In the event that plan is not acceptable to the Co-Neutrals, the DHS will have additional time to modify the plan and resubmit for approval. If the revised plan remains unacceptable, the Co-Neutrals will have the option of designating a third party to modify the plan or to craft a plan themselves.
If the DHS believes that its plan cannot be implemented without an additional appropriation of funds, it agrees to request such funds from the Legislature. However, the settlement agreement does not require the Legislature to increase funding to the DHS.
Once there is a plan (either the first or second version created by DHS, or the one developed by the Co-Neutrals), the DHS shall proceed to implement the plan and make regular reports to the Co-Neutrals on the Department’s progress toward achieving the target outcomes. Twice annually, the Co-Neutrals will provide commentary regarding whether the DHS is making good faith efforts to achieve progress towards each target outcome.
By October 15, 2014, Co-Neutrals shall issue written findings identifying: those target outcomes that have been met; those for which the Department has achieved sustained, positive trending; and those target outcomes for which the Department has not achieved sustained, positive trending (collectively referred to as the “Target Outcome Findings”). The Co-Neutrals will issue a second Target Outcomes Findings report by October 15, 2015.
On December 15, 2016, the Co-Neutrals shall issue a final report. The final report, in addition to the information contained in the Target Outcome Findings referenced above, shall include a finding that the Department has, or has not, made good faith efforts to achieve substantial and sustained progress toward each target outcome. If the Co-Neutrals find that the Department has made, for a continuous period of at least two years prior to December 15, 2016, good faith efforts to achieve substantial and sustained progress toward each target outcome, then the Department’s obligations under this Settlement Agreement shall terminate and the parties shall jointly seek to vacate any Judgment entered by the Court as a result of a finding or decision by the Co-Neutrals. If the Co-Neutrals find that the Department has not made good faith efforts to achieve substantial and sustained progress toward each target outcome, the Department shall continue to be subject to the terms of this Settlement Agreement for successive one year periods, with a continuation of the identified reporting requirements. At the end of each such period, the Co-Neutrals shall issue additional Target Outcome Findings until such time as
the Co-Neutrals find that the Department has made, for a continuous period of at least two years prior to the report, good faith efforts to achieve substantial and sustained progress toward each target outcome.
The DHS has agreed that Children’s Rights, which acted as Counsel for Plaintiffs, is entitled to legal fees and expenses. The agreement provides that the District Court will determine the amount. Fred Dorwart, a Tulsa attorney who has represented Children’s Rights, has agreed to waive any claim for fees he has incurred.
U.S. District Court Judge Greg Frizzell must approve the Settlement Agreement in order for it to be binding. This settlement is not considered a Consent Decree.”
DHS Commission Approves Modified Settlement Agreement
[News on 6 1/4/12 by Ashli Sims]
REFORM Puzzle Pieces
The settlement does call for monitoring of caseload, postplacement monitoring, and statistics. It does not mention training and selection of foster parents; training of social workers; monitoring of caseload in which children are receiving in-home services; honest representation of case file to the foster parent or anything specific to type or access of services for children in foster care, though.
Postplacement monitoring of children in care is mentioned in the settlement. Access to services or accounting for services is not mentioned.
Update 11: ” A federal judge ended four years of litigation between a national child advocacy group and the Oklahoma Department of Human Services on Wednesday, approving the settlement agreement of a class-action lawsuit over the safety of foster children.
U.S. District Judge Gregory Frizzell sanctioned the settlement at a fairness hearing in Tulsa.
New York-based group Children’s Rights filed the lawsuit in 2008 on behalf of nine children in foster care — ages 4 months to 16 years — alleging they shared a history of suffering in DHS placements, including physical abuse and neglect. The lawsuit received class-action status, broadening it to include all 10,000 children in foster care in Oklahoma.
DHS officials had said every case involving a child in its custody is supervised by a state judge, making federal court intervention unnecessary.
“This is the culmination of four years of very, very hard work, but most importantly, it really does mark a new day for Oklahoma’s children,” said Marcia Robinson Lowry, executive director of Children’s Rights. “It’s going to lead to the fundamental reform of how the state protects its abused and neglected children.”
Department of Human Services Director Howard Hendrick said the department is pleased that Frizzell approved the settlement agreement, which he said allows the agency to continue making the state’s foster care system stronger for children.
Department of Human Services Director Howard Hendrick says DHS is committed to the safety and well-being of the children it serves.
“We are committed to the safety and well-being of the children we serve,” Hendrick said. “The strengths in our system allowed us to reach this agreement and our commitment to children extends far beyond the terms of this agreement.”
The agreement calls for the department to prepare a plan by March 30 that includes specific strategies to improve the child welfare system in the areas of child abuse and neglect in care, as well as the number of foster homes available for children in need of therapeutic care, the visitation of children by case workers, adoption and caseloads.
“We’ve got about a month to get it done and we’re working hard on it. We hope it will be approved and down the road lead to better things for the kids,” said D. Kent Meyers, who represented the Department of Human Services in the case.
A key component of the agreement is the selection of three outside child welfare experts, or “co-neutrals,” who will review the department’s action plan and act as arbiters of any dispute between the plaintiffs and the department.
“The plan has to address at least 15 separate performance measures and DHS is then obligated to demonstrate it’s working toward those performance measures,” said Frederic Dorwart, whose Tulsa law firm represented the plaintiffs. “The co-neutrals review it and if they disagree, ultimately the three co-neutrals can prepare their own plan.”
Both sides initially agreed to settle the lawsuit in late December. The proposal had to go through the three-member Contingency Review Board, which by law must consider lawsuit settlements greater than $25,000 if the Legislature is not in session.
Both sides reviewed the changes and agreed to them just weeks before the trial in the case was to start on Feb. 6.
Attorneys for the plaintiffs sought no monetary damages in the case, and Dorwart said his law firm took the case on a pro bono basis. Hendrick has said the agency had incurred at least $7 million in legal fees and other costs.”
Judge approves settlement of suit against Okla. Department of Human Services over foster care
[The Republic 2/29/12 by Rochelle Hines/Associated Press]
Update 12: Children’s Rights has billed Oklahoma for 36,000 man-hours of work…$9.5 Million. Oklahoma is not too happy.
“The group notes in the filing that the settlement of the lawsuit, which it brought in 2008, removed “a culture of denial and inattention” and “a system with no accountability” in favor of an open agency that “may well serve as a model for systems across the country.”
The amount is more than double the $4 million the Legislature allocated to spend on the nonprofit’s attorneys’ fees — an amount that Department of Human Services spokeswoman Sheree Powell said Tuesday was “a clear message from the Legislature that the state of Oklahoma is not an open checkbook.”
“We will closely examine Children’s Rights’ time and expense records and, where appropriate, challenge them before the court,” Powell said in a statement Tuesday. “Ultimately, the court will determine the reasonableness of their hourly rates and their hours expended.”
Marcia Robinson Lowry, Children’s Rights executive director, said the state is welcome to examine the group’s billing records.
“It is a little surprising given how much this state was willing to spend to defend the lawsuit,” said Lowry, referring the near-$7 million cost to DHS so far. “I’ve never seen a case with a system as bad as this one with a defense as expensive as this was.
“If the state wants to spend its money this way, that’s their decision,” she said.
The settlement resulted in the so-called Pinnacle Plan, the state’s $153 million plan for overhauling the foster care system over the next five years.
The plan would place all children younger than 2 years old in a family-like setting rather than a group shelter by the end of the year and establish a training program for Department of Human Services staff by July 1, 2013. It also calls for increasing the number of foster families in the state, hiring more child welfare specialists, lightening specialists’ case loads and more frequent communication with foster families.
Lawmakers this session boosted funding for the agency by $50 million, with half of that money allocated to helping implement changes to its child-welfare programs. The additional funds brought the agency’s overall state appropriation to $587 million.
“It’s clearly an extraordinary settlement,” Lowry said Tuesday. “It’s certainly all we could wish for our clients and a measure of how dysfunctional this system was.”
Okla. billed $9.5M in fees from foster care suit
[NECN 6/19/12]
Update 13: “The settlement required the Oklahoma Department of Human Services to create an improvement plan to address 15 concerns in its foster-care system. Implementation will occur in stages through 2017.
The plan, called the Pinnacle Plan, received final approval Wednesday.”
“The monitors sent back a first version for revisions in May. The major changes were moving up deadlines, eliminating shelter use by young children by the end of the year and targeting recruitment of more workers.
“This is a thoughtful and ambitious plan; very hard work is yet ahead to build the system (DHS) describes,” the statement says. “Success will require the continued leadership and support of all three branches of government in the best interests of Oklahoma’s children.
“”To demonstrate our commitment, we have already implemented some of the initiatives in the plan such as the first of several increases to reimbursements for foster parents and salaries for child welfare specialists,” DHS Interim Director Preston Doerflinger said. “We have also been working with the (monitors) on performance targets and baselines, which will measure our successful implementation of this plan as we move forward.”
Those baseline standards are expected to be finalized by the end of December.
DHS officials spent months crafting the plan, including holding summits staff and meetings with lawmakers, foster families and child advocates.
“The Pinnacle Plan’s name reflects our goals – to reach the highest point possible in our child welfare program,” said Deborah Smith, DHS director of child welfare services. “This plan is the result of a lot of hard work and collaboration by people who are very committed to improving our system that protects abused and neglected children.”
“It will not be easy – change of this magnitude will take time. Focus, investment, transparency and perseverance will be essential to reach the goals identified in this Pinnacle Plan.” ”
“Those measures included a mandated organization restructuring, more openness after a child abuse death, $25 million to implement the plan and a November vote to abolish the oversight commission.
Costs for the plan ramp up from about $30 million in year one to $100 million annually.
Gov. Mary Fallin called the approval of the Pinnacle Plan a “big step forward” in strengthening services.”
“The monitors have the ability to seek court intervention if the agency does not make significant progress.
“We intend to report fairly and openly over the next five years on the state’s progress in making the Pinnacle Plan a reality for the children and families of Oklahoma,” the statement read.
“As contemplated by the parties’ original agreement, we now turn our attention to working with the parties to identify the specific performance targets and baselines that will mark Oklahoma’s progress in the implementation of the Pinnacle Plan.” ”
Panel approves plan to overhaul state foster-care system
[Tulsa World 7/26/12 by Ginnie Graham]
Update 14:“The head of Oklahoma’s Department of Human Services is bracing for criticism.
The next report from monitors of a federal court settlement to improve the foster-care system is expected by the end of April.
It likely will be negative, said DHS Director Ed Lake. But that is not the whole story.
“It’s not an excuse, and we are not abandoning the goals, but there are reasons why it’s been a slower go,” Lake said. “It’s up to us to speed the process.”
The Pinnacle Plan is the improvement plan stemming from a negotiated settlement between the agency and nonprofit Children’s Rights, which filed a federal lawsuit in 2008 alleging abuses and ill treatment of children in foster care.
The agreement was reached in early 2012, with implementation beginning in August that year.
Shortly after the settlement, DHS Director Howard Hendrick retired and Preston Doerflinger, state director of finance and revenue, served as interim director. That fall, voters abolished the DHS governing commission in favor of citizen advisory panels and governor oversight.
An overhaul of the organization’s structure and managers began first, just as the number of children coming into foster care shot up from about 8,500 to 11,300, placing pressure on an already strained child-welfare system.
This is what Lake walked into when he was hired in November 2012.
“That is a lot for any agency to face,” Lake said. “We are making progress, and we have a sense of forward motion. This DHS is a lot different than the DHS of two years ago. We are going in the right direction, but it’s been slow.”
‘Very ambitious plan’
The lawsuit did not address the entire child-welfare system, just foster care. Excluded are child abuse and neglect referrals and investigations areas.
The Pinnacle Plan has 15 areas in foster care to improve, with goals and target dates, such as shelter use and the number of available foster placements.
“It is a comprehensive and very ambitious plan,” Lake said. “There is some awkwardness to the sequencing that is going to give us problems. But it is an agreement.”
The cost is estimated to be about $100 million over five years. It received $25 million out of the $30 million request to the Legislature the first year, and $32 million out of the $40 million request in the second.
Lake has requested $33 million in supplemental funding to get through the fiscal year.
“I feel fortunate to have received what we have,” Lake said. “The upside is the governor, administrators and Legislature are trying every which way to fund this initiative. The Legislature has a zillion competing interests. However, the funding didn’t match that of the initiative, and the foster-care numbers went up 33 percent.”
About 600 workers have been added so far to the child-welfare divisions, but no raises have been given, which is part of the Pinnacle Plan. Doerflinger approved a bump in the foster-home rates in 2012, but additional raises are part of the plan.
Turnover of staff remains a problem. DHS decided to increase the number of new hires to alleviate the workload while implementing a mentor-supervisor program and updating the training.
“People know what their salary is when they are hired,” he said. “It’s the work and what they are facing later driving them away. It’s so important to get the workforce stabilized and improve working conditions.”
A point of debate with the oversight monitors has been how to interpret data.
For example, when counting foster homes, can the homes that haven’t accepted a placement for several months be included, or those that left the program and later came back?
“We have so much data and there are different way of looking at data,” Lake said. “We are not monkeying around with the data. We are coming to common ground on what it means.”
A Chicago-based, nationally recognized group implementing and analyzing child-welfare systems has been commissioned to negotiate the technology aspects.
In counting caseloads, the monitors and DHS are using a method looking at assigning cases by work experience rather than taking an overall average.
‘A better job’
For every target DHS hasn’t met, Lake said it is nearly there.
In the recruitment of homes, the goal was to have about 1,400 by now, but it is at about 1,100. In eliminating and reducing shelter use, DHS is about a year behind.
Shelter use for infants went from about 21 in October to two this month. The goal was to have none.
A challenge has been the sequencing of reaching certain targets, Lake said. He would have preferred to focus on hiring and retaining staff first and then upping foster homes and reducing shelter use.
Problems were in contract lags, staff shuffling and some bureaucratic waits from outside DHS.
“In the plan, it looks like it was that sequence,” he said. “Trouble is, it wasn’t like that in reality. We were addressing workloads, shelter use and resource homes concurrently.”
In meeting the goals, Lake doesn’t want unintended consequences. DHS was criticized by the monitors last fall when it found workers placing children in multiple homes over a short period of time to avoid shelter use.
“We’ve got to do a better job in slowing down and seeing where we may have other resources,” he said. “It’s about the best interest of the child. At the end of the day, if you can’t avoid multiple home placements, you may have to use the shelter.”
But approval must be granted from the top child-welfare administrator, who is reviewing every shelter placement.
‘Good-faith effort’
Ultimately, the settlement could land back in federal court if the plaintiffs file a petition arguing improvements in the plan were not made in a “reasonable” and “good faith” manner. That would be considered after the five-year plan deadlines.
“I firmly believe we are making a good-faith effort,” Lake said.
Several national groups have been working with DHS, including the Annie E. Casey Foundation, Casey Family Foundation, National Resource for Organizational Development and Action for Child Protection. It also has a child-welfare advisory panel and contracts for foster-home recruitment.
“We are not doing this by ourselves,” Lake said. “There is a different feeling in Oklahoma. We continue to get support from the Legislature, governor and others who want to help us succeed. People may disagree that happens on a daily basis but it’s gratifying to see people pulling for you and helping you.”
Lake said DHS workers are looking at the big picture now, trying to find resources to get children to a permanent home quicker.
“We continue to underestimate the problems following children due to trauma of being removed from their families,” Lake said. “We look at the immediate protection issue and not always the trauma that continues to accumulate forever.””
Oklahoma DHS director says foster care slowly improving[Tulsa World 3/30/14 by Ginnie Graham]
Update 15: “Oklahoma is making lackluster progress toward its promise to improve its foster-care system, according to a report released Wednesday morning by an independent monitoring panel.
The second report from the monitors of the Pinnacle Plan implementation by the state Department of Human Services gave their first opinion on the state’s “good faith efforts to achieve substantial and sustained progress.””
“The Pinnacle Plan is the negotiated settlement between the agency and the nonprofit Children’s Rights, which filed a federal class-action lawsuit in 2008 alleging abuses of children in foster care.
An agreement was reached in early 2012, and the five-year plan started being put into place in August that year. It has 15 areas to improve, with goals and target dates, such as shelter use and the number of available foster placements.
The monitors make twice-a-year reports on how the state is meeting its goals.
At any point, the monitors could obtain court orders if they believe the state is not making significant progress.
The latest report expressed concerns about the sluggish recruitment of foster homes and therapeutic foster homes and the use of emergency shelters for children age 6 and older.
The monitors complimented the caseworkers for their dedication.
“Throughout, the (monitors) have been impressed by the commitment of DHS caseworkers and supervisors to strengthen the Oklahoma child welfare system so that it works better for children and families, although the DHS staff bear an enormous burden trying to do so in the face of very high caseloads and a shortage of safe, family-like placements for children,” the report states.
Marcia Lowry, executive director of Children’s Rights, said this report shows Oklahoma has not changed its priorities regarding children.
Because voters abolished the oversight commission in 2012 in favor of governor oversight, Lowry said the state’s top elected official should be held accountable.
“There is clearly a leadership problem here, and the state’s promise to implement the plan the state itself outlined in the Pinnacle Plan is clearly not being implemented in many respects,” Lowry said. “Although the people in charge have changed and the buck now stops with the governor, children are not any better off.”
Lowry said the findings of not making good faith efforts in foster-home recruitment, shelter use and caseloads are “troubling findings.”
DHS officials say there has been some disagreement on the data collection and interpretation. A nationally recognized Chicago-based company has been hired to help in those discussions.
Lowry said the lack of data is a reflection of continued bad practices, pointing to problems getting data during the court process.
“There hasn’t even been corrected data available and that is so critical in many respects, like foster home and therapeutic home recruitment,” Lowry said. “They cannot even get the data straight. I am surprised by this, and I do attribute it to a lack of leadership. They could have done a better job, especially with regard to recruiting foster homes, which is so critical to all of this.”
While the monitors have not sought court orders to date, Children’s Rights did express concerns to them about the state not giving promised raises to workers and foster parents. The monitors noted that the increases were made late and no orders were needed.
“It is disheartening that Oklahoma seems unable to prioritize the needs of its most vulnerable citizens,” stated Fred Dorwart in a written release. His law firm served as co-counsel for the plaintiffs.
“Children in state care, who already have suffered horrifying trauma, deserve nothing less than good homes and the full attention of those overseeing their cases. The state’s practices continue to expose children to harm and the threat of harm.”
The report findings are not a surprise to DHS, though officials disagree with some of its findings.
Director Ed Lake has spoken publicly for the past few weeks about the challenges being faced, from high staff turnover to a need for supplemental funding.
The most significant is a jump in the number of children taken out of abusive and neglectful homes, from 8,500 to 11,300, at a time when these reforms are being made.
Lake said he was pleased monitors recognized the work of the staff and those challenges. But he said improvements have been made in each area even though some fell short of the goal.
“It has been an uphill battle at almost every turn with the unexpectedly rapid rise in the number of children being placed in state custody,” Lake stated in a written release. “That fact alone has affected key goals in the Pinnacle Plan. The pace of a few of our initiatives hasn’t been what we all wanted it to be, but that certainly hasn’t been for lack of effort or support for our work.
“We believe progress is being made, even with the number of children in our care, and the data supports our belief.”
DHS overhauled its structure of child welfare, hired about 600 workers, reformed investigative procedures and responses to child-abuse allegations and eliminated shelter use for children 2 and younger, and has nearly rid shelter use for all children younger than 6.
“This is not the same department it was two years ago,” Lake said. “We are headed in the right direction, but it will take time to get where we want to be. This is only the second year of a five-year improvement plan, and we still have much work ahead.”
The cost of the Pinnacle Plan is estimated to be about $100 million over five years. It received $25 million out of the $30 million request to the Legislature the first year, and $32 million out of the $40 million request in the second.
Lake requested $33 million in supplemental funding to get through the fiscal year but no action has been taken.
Though the funding falls short, Lake said DHS has fared better than other agencies.
“We are extremely grateful to Gov. Mary Fallin and the Oklahoma Legislature for their continuing support and investments they have made to enable these improvements,” he said. “The state’s financial investment has been considerable, and it’s clear this critical work to improve our child welfare system is a high priority.””
Oklahoma foster care reform efforts criticized[Tulsa World 4/30/14 by Ginnie Graham]
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