Court affirms foster kids have right to be safe while in state custody

In a long-awaited ruling, the state Supreme Court unanimously decided yesterday that Washington's 10,000 foster children have a fundamental, constitutional right to be kept safe from harm when they are in the state's care.

But the high court sent the question of whether the state has done enough to protect and mend the broken lives of foster children back for a new trial, because of legal errors made during a seven-week jury trial in Whatcom County two years ago.

After a jury there found that the state Department of Social and Health Services had been violating children's rights, the social services agency was ordered to make sweeping reforms to reduce the emotional damage many children suffer as they are shuffled through the foster care system.

Superior Court Judge David Nichols wanted DSHS to stop bouncing children through multiple foster homes, cease its practice of separating brothers and sisters, alleviate the chronic shortage of foster homes, and treat children's mental illnesses and behavior problems thoroughly.

But DSHS appealed, arguing that the judge's reforms were poorly thought out and could cost an additional $60 million a year in taxpayer dollars to implement.

Lawyers on both sides of the complex case viewed yesterday's Supreme Court ruling as cause for celebration.

For now, the ruling frees DSHS from court intervention in its troubled child welfare system. Agency Secretary Dennis Braddock was elated.

"I am tickled that the injunction is gone, because it would have been terrible for the kids of this state," he said.

But the multilayered ruling opens the door for future court intervention by setting a high legal standard for judging how well DSHS is meeting the basic physical and mental health needs of the foster children in its care.

The Supreme Court established that budget shortfalls are not a legitimate excuse for denying services to foster children, warning that in the future, "this court can order expenditures, if necessary, to enforce" their constitutional rights.

And perhaps most significant, the court's nine justices agreed that foster kids have a fundamental, constitutional right to "be free from unreasonable risk of harm, including a risk flowing from a lack of basic services, and a right to reasonable safety."

Tim Farris, one of the attorneys representing Jessica Braam and 12 other children who claimed that they suffered emotional damage in the foster care system, called the ruling historic.

"This will inspire child advocates around the country that children in foster care have a constitutional right to be free from harm and (will) encourage similar lawsuits," he predicted.

Former state Supreme Court Justice Phil Talmadge said standards the court established could well be expanded to apply to state-funded care of mentally ill and developmentally disabled people.

"This is a very powerful statement by the court in an area that has been really unclear," said Talmadge, who is a candidate for governor. "It will be a major tool for advocates for human services."

Farris and lawyers from Columbia Legal Services and the non-profit National Center for Youth Law, who teamed up on the case, said they were eager to go before Nichols for a retrial.

"We would go back next week if we could," Farris said. "We are going back before a judge who has already found that children are being harmed by the state's practices. He is determined to protect children."

One reason the attorneys for foster children in the case are optimistic is that the high court rejected the standards DSHS proposed for judging whether it is violating foster children's constitutional rights.

DSHS argued that it should be found in violation only if its care of children "shocks the conscience or were deliberately indifferent to their rights" -- the legal standard applied to the treatment of criminal defendants.

The high court, however, decided that foster kids deserve a higher, easier-to-prove standard amounting to a "substantial departure from accepted professional judgment, standards or practice" by DSHS.

"Foster children, because of circumstances far beyond their control, have been removed from their parents by the state for their own best interest," wrote Justice Tom Chambers in the unanimous decision.

"More often these children are victims, not perpetrators. Foster children need both care and protection. The state owes these children more than benign indifference and must affirmatively take reasonable steps to provide for their care and safety."

In sending the case back for retrial, the high court said Nichols had erred in the instructions he gave to the jury in the case. The court said the jury was not specifically asked whether DSHS had violated the children's constitutional right to be kept safe from harm and also had not asked whether DSHS' actions were a significant departure from accepted social work standards.

The jury that heard the case last year did find that the children's rights had been violated. And it found that children were being harmed by multiple foster care placements, poor training of foster parents, inadequate mental health care and unsafe placements in DSHS offices and in homes with other, violent children. Those findings led Nichols to issue his injunction ordering the state to make sweeping changes.

Under the Supreme Court's ruling, the second trial must be held before Nichols and not before a jury.

Yesterday, Braddock said he was confident that his agency would prevail at a second trial. And he said children will be better served by the voluntary reforms already under way in response to an ongoing federal assessment of Washington's child welfare system.

"Our system needs improvement," he said, "but it is not broken."

ON THE WEB

To read the state Supreme Court's decision in the Jessica Braam et al v. State of Washington case online, go to: www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=725985MAJ

P-I reporter Heath Foster can be reached at 206-448-8337 or heathfoster@seattlepi.com

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