DHS foster care lawsuit settlement brings optimism for reform

Oklahoma is just a few steps from finalizing a transformation of the way it provides care for abused and neglected children.

The approval of a settlement agreement late Tuesday by the commission that oversees the state Department of Human Services puts in motion the possibility of reforms in social worker caseloads, data collection, communication and oversight.

“There will be a fundamental change in the approach of the system for children as a result,” said Children’s Rights Executive Director Marcia Lowry. “This is the beginning of a very exciting process.”

Children’s Rights, a New York-based children’s advocacy group, filed a lawsuit in February 2008 alleging abuses of children in foster care, including scaldings, molestations and beatings. The lawsuit was expanded to a class-action in May 2009 after a judge agreed that the problems were systemic and affected all children in Oklahoma foster care.

The terms of the settlement will remain confidential until it is approved by the state’s Contingency Review Board – made up of the governor, the House speaker and the Senate president pro tem. The director of the Office of State Finance is a nonvoting member.

When the Legislature is not in session, state law requires approval from this board when lawsuit settlements are expected to cost the state more than $25,000. A board meeting about the proposal is planned for Dec. 28.

House Speaker Kris Steele will not comment on the settlement, said his spokesman, John Estus.

Steele has been a critic of DHS, especially in light of some high-profile deaths of children in which the agency had involvement. In October, he established a bipartisan five-member work group to examine all programs of the agency as part of a strategy for finding improvements.

“At this point, there isn’t a big concern about one interfering with the other,” Estus said of that work group and the settlement.

“It’s possible that the settlement may actually dovetail quite well with the reforms the Legislature is developing,” he said. “Both initiatives seek the same thing, and that is to provide better care for the children DHS serves.”

The Oklahoma Commission for Human Services met in executive session from 5:50 p.m. to 10:50 p.m. Tuesday to discuss the terms of the settlement.

When a roll call was taken for a vote after the executive session, Commissioner Jay Dee Chase said he had received a copy of the settlement a little after 3 p.m. that day.

“Presently, I have more questions than answers,” he said.

Chase voted against the settlement, along with Commissioners Aneta Wilkinson and Richard DeVaughn.

Commission Chairman Brad Yarbrough, who joined the oversight board in September, said he was “satisfied” with the settlement.

“It was in the best interest of the commission” to settle the case, he said.

Commissioner Steven Dow said the board’s previous focus had been on fighting the lawsuit. He said Yarbrough, Attorney General Scott Pruitt and U.S. Magistrate T. Lane Wilson were “exemplary” in managing the discussion.

“We will now be able to say that is behind us and the focus and energy of the commission will not be on litigation and lawyers but on improving the system for kids,” Dow said. “That’s where we ought to be.

“That’s been the biggest change for the commission. We won’t be worrying anymore about fighting a lawsuit but focusing on making the system of that lawsuit a better system.”

Reps. Jason Nelson, R-Oklahoma City, and Jeff Hickman, R-Dacoma, waited for the vote late Tuesday. Nelson is leading the House work group, and Hickman is the House speaker pro tem.

“We are looking at the whole agency – better communication, leveraging federal funding, how DHS is working with other agencies and district attorneys,” Nelson said. “One thing that encourages me is the number of great employees who work every day with the worst our society can dish out. It’s vital work.”

Hickman said the settlement’s impact will be significant and that legislators must step up to act on the reforms.

“These are not easy issues. They are complicated issues and issues that have been avoided by previous Legislatures,” Hickman said. “But this is why the Legislature is here – to make decisions that impact the lives of people in our state. We have to be willing to take on difficult challenges.”

The class of plaintiffs is defined as any current or future foster children. No damages will be paid to class members or the original plaintiffs in the lawsuit.

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. Attorneys fees have included $10.5 million in Georgia and $6.5 million in Michigan.

Currently, the organization has pending cases in four states, and eight states are either in a monitoring or implementation stage.

The Oklahoma lawsuit has more than 775 docket entries, more than any other case Lowry has litigated, she said.

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.

Having national accreditation for its Child Welfare Division, as state law requires, and educating and recruiting foster families are also among reforms sought.

“There is nothing easy about running a child-welfare system, but other states are doing a better job,” Lowry said.

New Jersey has two possible foster placements for each child coming into its system, while Oklahoma has about one-third of a foster family for each child, she said.

The evolution of the current child-welfare system has been influenced by multiple factors, some beyond the control of DHS, Estus said.

“Everyone agrees that as a state, we can do better with our child-welfare system,” he said. “It’s an incredibly complex system, so it’s not necessarily a misstep or any one thing that got us to this point.

“There are some systemic shortcomings that can be fixed, but it’s important to remember that the child-welfare system is under a lot of stress due to social issues that aren’t nearly as easily addressed as the system itself,” Estus continued.

“Oklahoma has far too many at-risk families, divorces, poverty issues, substance abuse problems, parents in prison. All these things and more contribute to children having to enter the child-welfare system, and that puts the system under stress.

“The system simply hasn’t been able to keep up, but the system can be improved.”

December 22nd, 2011
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