Judge demands state keep foster-care promises

BELLINGHAM — A judge Monday gave the state Department of Social and Health Services 30 days to start keeping promises it made four years ago to settle a class-action lawsuit on behalf of thousands of foster children.

Whatcom County Superior Court Judge Charles R. Snyder said the state has made plenty of promises to closely monitor the health and well-being of children in its care, but has failed to keep those promises.

"I'm not asking," he said. "I'm ordering."

The ruling, unexpected after Monday's lengthy hearing, requires the state to find ways to make monthly visits to foster children, to get them prompt health screenings, to ensure that they see their siblings regularly and to keep caseloads at a level where this is possible.

State officials said the agency is already making considerable strides toward these goals, thanks in part to recent funding.

"Each of these issues and our ability to comply with them depend on having sufficient resources," DSHS spokesman Thomas Shapley said in a statement Monday afternoon. "No matter what we do in regard to this ruling, we will continue to work on behalf of children."

Neither side thought the judge would rule immediately from the bench, given the case's complexity.

The ruling came a decade into what's known as the Braam case, named for the lead plaintiff, Jessica Braam, who had been bounced through 34 foster-care placements by the time she was 12 years old. Her case came to be seen as emblematic of problems that plagued the foster-care system. At any one time, about 10,000 Washington children are in foster care.

Attorneys for the children, led by Casey Trupin, a lawyer for Columbia Legal Services, and Tim Farris, a personal-injury lawyer from Bellingham, had argued that Jessica — and thousands like her — had been harmed by the state's broken system. Farris, for example, has represented numerous children who have been sexually or physically abused while in foster care.

After years of wrangling, the Braam case was settled in 2004. The state agreed to a timetable to meet certain measurable goals, such as reducing the number of children who bounce through placements. In addition, it created a panel to track the agency's progress.

The panel has repeatedly found that the state has fallen short. But because the panel has no enforcement authority, there were no real consequences. Monday marked the first time that the plaintiffs had thrown up their hands and taken the state back to court.

"If this isn't a stalemate, I don't know what is," Trupin argued in court.

As part of his order, Snyder laid out tight new timelines for the agency to begin making progress in four areas; he ordered the agency to figure out how much it will cost and then ask the Legislature for that money; and he demanded the agency provide the data it promised, even if that means counting it manually.

At least seven other states are also under court orders requiring improvements after being sued by the New York-based advocacy group Children's Rights. Marcia Robinson Lowry, the group's executive director, said states sometimes respond to pressure from courts by changing leadership of their child-welfare agencies or by renegotiating their settlement agreements.

"Sometimes it takes that kind of demonstration to the state, that it won't be business as usual," said Lowry.

The state, represented by Assistant Attorney General Stephen Hassett, conceded that some of the goals hadn't been met. However, he said, several new developments will allow the state to get back on track. For example, he said, the Legislature recently set aside money for sibling visits and to hire a dozen more health screeners.

He added, too, that the plaintiffs hadn't shown any actual harm as a result of the delays. Under the circumstances, the attorneys didn't even have a right to go back to court, he said. Hassett urged the judge: Hold off making any decisions until 2009; by then the state will be in compliance.

The judge saw it differently.

It's true, he said, that plaintiffs hadn't proved that the agency failed to meet professional standards — but that was partly because the agency still hadn't figured out how to measure all of its work.

Although he didn't consider the agency to "be the big ogre out there," he did agree that something had to be done to prevent the agency from "skirting" the agreement. Snyder made it clear that he'll fill that role.

"There needs to be some consequence," he said.

Hassett, arguing for the agency, asked for deadlines that were more "realistic," but was rebuffed.

"You need to do whatever it takes to comply," Snyder said.

Trupin was thrilled. "It's everything that we hoped for," he said. "The judge understood the broken promises."

Other child-welfare experts, including Richard Wexler of the Virginia-based National Coalition for Child Protection Reform, were not optimistic the Braam lawsuit would succeed with its reform-minded goals. Because Washington's foster-care system is overwhelmed, Wexler said, Judge Snyder's order is like "squeezing a balloon filled with water."

"The problem may shrink in one area, but it will bulge in another," said Wexler. "The system is too overloaded with children that don't need to be there."

Should the panel find that the agency isn't meeting the new requirements, the children's lawyers can bring the state back to court. At that point, Snyder could order fines, hold someone in contempt, or put the agency under court governance, something that's been done in other states.

"I'm giving you the opportunity," Snyder said. "What I'm hoping is [the agency] makes progress."

Seattle Times staff reporter Jonathan Martin contributed to this story.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com