Pilot Child Welfare System Redesign
Strategic Action Plan
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14.6 Requirements from Class Action Suit
NOTE: Text from this Section is from the Wyatt v. Brown Class Action Suit.
- As a direct and proximate result of defendants’ violations of Rehabilitation Act, Plaintiffs have been or are at risk of being injured as set forth above and will continue to suffer injury until Defendants are required to, and have, come into compliance with the requirements of the Rehabilitation Act.
WHEREFORE, the named Plaintiffs, on behalf of themselves and the classes, respectfully request that this Court:
- Order that this action may be maintained as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure;
- Pursuant to Rule 57 of the Federal Rules of Civil Procedure, declare unconstitutional and unlawful:
a. Defendants’ violation of Plaintiffs’ and class members’ right to be free from harm under the Fourteenth Amendment to the United States Constitution;
b. Defendants’ violation of Plaintiffs’ and class members’ rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution;
c. Defendants’ violation of Plaintiffs’ and class members’ rights under the Adoption Assistance and Child Welfare Action of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. § 670 et seq.; and
d. Defendants’ violation of Plaintiffs’ and class members’ rights under Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(2), Section 504 of the Rehabilitation Act (“Section 504” or “RA”), 29 U.S.C. § 794, and the respective implementing regulations.
- Permanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights, including:
a. With regard to all children in the general class:
i. Require DHS to contract with an appropriate outside entity to complete a needs assessment of the state’s provision of foster care placement and services no later than six months after judgement, to determine the full range and number of appropriate foster care placements and services for all children needing foster care placement, including the development of a plan, with timetables, within which such placements and services shall be secured, and ensure that DHS shall comply with those timetables;
ii. Require that DHS ensure that all children who enter foster care placement receive within 30 days of entering care a complete and thorough evaluation of the child’s needs, performed by a qualified individual, including whether the child has any physical and/or mental disabilities sufficient to be categorized as a child with disabilities under the ADA and that the child be re-evaluated as the child’s needs and the information available to DHS change;
iii. Require that DHS ensure that all children who enter foster care placement receive within 60 days of entering care an adequate and individualized written case plan for treatment, services, and supports to address the youth’s identified needs; describe a plan for reunification with the child’s parents, for adoption, or for another permanent, family-like setting; describing any interim placements appropriate for the child while the child moves towards a permanent home-like setting; and describing the steps needed to keep the child safe during the child’s time in DHS’s custody.
iv. Require that DHS shall ensure that all children whose case plan identifies a need for services and/or treatment timely receive those services and/or treatment;
v. Require that DHS shall ensure that all children who are placed in foster care are placed in a safe home or facility and are adequately monitored in accordance with federal standards;
vi. Require that DHS shall hire, employ, and retain an adequate number of qualified and appropriately trained caseworkers, and ensure that caseloads do not exceed 15 children per-worker for children in placement, with caseloads adjusted for caseworkers who carry mixed caseloads including children not in foster care custody; and
vii. Require DHS to develop an adequate statewide plan, to be approved by the Monitor referred to below, for recruiting and retaining foster and adoptive homes, including recruitment goals and timetables for achieving those goals, with which DHS shall comply.
b. For all children in the ADA sub-class:
i. Require that DHS shall ensure that all children with physical, mental, intellectual, or cognitive disabilities shall receive foster care services in the most integrated setting appropriate to the child’s needs, including, in as many instances as is required by reasonable professional standards, family foster homes with supportive services;
ii. Require that DHS ensure that an adequate array of community-based therapeutic services are available to children with disabilities;
iii. Require that DHS ensure that it develop an adequate array of community-based therapeutic foster homes and therapeutic placements to meet the needs of children with disabilities;
iv. Require that DHS shall report to the Monitor referred to below on the placement type and the provision of services to all children who are in the ADA sub-class.
c. For all children in the aging out sub-class:
i. Require that DHS, when a child turns 14 years old while in its custody and is not imminently likely to be reunified with family, adopted, or otherwise placed in a permanent family-like setting, engage in transition planning to meet the health care, educational, employment, housing, and other social needs of the children in transitioning to adulthood;
ii. Require that DHS ensure that children be placed in foster family homes whenever possible or, if the young person declines such a placement, in an appropriate group home with appropriate, necessary and individualized services;
iii. Prohibit DHS from refusing to place a young person in a foster care placement because the child is 14 or older.
iv. Require that DHS report to the Monitor referred to below on all children 14 and older, where the child is placed, and the type of services the child is receiving; and
d. For all children in the SGM sub-class:
i. Require that DHS shall ensure that all SGM children shall receive foster care services that support and respect a child’s sexual orientation, gender identity and gender expression;
ii. Require that DHS shall ensure that SGM children are not placed in placements where a child’s sexual and gender identity or expression are viewed as immoral, undesirable, or problematic or where SGM children are subjected to regulation that does not apply to non-SGM children;
iii. Require that DHS shall ensure that an SGM child’s clothing, personal care, hygiene, hairstyle, makeup, jewelry or other accessories and grooming be consistent with the child’s gender identity, gender expression and sexual orientation;
iv. Require that DHS shall ensure that an SGM child’s name and pronouns are used and respected, whether or not they conform to the child’s assigned sex at birth or external anatomy, and that the child’s wishes are honored with regard to the times and place in which the foster child wishes to be addressed by that name and pronoun or in another manner;
v. Require that DHS shall ensure that the confidentiality of a child’s gender identity, gender expression and sexual orientation are maintained and not disclosed without the consent of the child or when necessitated by an emergency;
vi. Require DHS to develop guidance and identify, coordinate, and support foster children seeking access to gender affirming health care and gender affirming mental health care;
vii. Require that DHS shall report to the Monitor referred to below on the placement type and the provision of services to all children who are in the SGM sub-class.
- The Court shall appoint a neutral Monitor, paid for by the defendants, to monitor the terms of this Order. The Monitor shall have access to all relevant documents and information necessary and shall conduct record reviews as necessary to ensure compliance with its terms.
- Award reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and
- Grant such other and further relief as the Court deems just, necessary, and proper to protect Plaintiffs and the class members from further harm.
Action Step 14.6.1: Replacing the foster care system in Oregon with a set of Temporary Therapeutic Respite Care Homes will meet most of the requirements from the lawsuit.
Action Step 14.6.2: First, replace the foster care system in Oregon with the Temporary Therapeutic Respite Care Homes as described in Volume 2 of this Strategic Action Plan.
Action Step 14.6.3: Once the Temporary Therapeutic Respite Care Homes are in place, determine what additional requirements from the lawsuit need to be met and address them appropriately.
 Wyatt B v Kate Brown, Case 6:19-cv-00556-AA Document 1 Filed 04/16/19 Page 1 of 74
Case No. 19-556 CLASS ACTION COMPLAINT, from DAVIS WRIGHT TREMAINE LLP
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