UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Class Action
COMPLAINT FOR
|
Page i
TABLE OF CONTENTS
| Page No. | |
| I. Introduction | 1 |
| II. Jurisdiction and Venue | 5 |
| III. The Parties | 5 |
| A. The Named Plaintiffs | 5 |
| B. The Defendants | 10 |
| IV. Class Action Allegations | 12 |
|
V. Dangerous Failures in Oklahoma’s Foster Care System Have
Been
Documented for Over Ten Years, Yet DHS Has Failed to Ameliorate Them or Implement Necessary Reform |
16 |
| VI. Failures in the Operation of the Oklahoma Foster Care System | 21 |
| A. Plaintiff Children Are Victimized While in DHS Custody | 24 |
|
B. DHS Houses Plaintiff Children in Dangerous and Inappropriate Placements That Fail to Provide Adequate Protection or Meet Their Needs |
24 |
|
1. DHS’s Failure to Develop and Maintain a Sufficient Number and Array of Foster Care Placements |
25 |
|
2. DHS Unnecessarily Institutionalizes Plaintiff Children in
Dangerous and Inappropriate Emergency Shelters for Extended Periods of Time |
28 |
|
3. DHS Places Plaintiff Children in Dangerous and Inappropriate Homes and Facilities While in DHS Custody |
30 |
|
4. DHS Frequently Moves Children From One Inappropriate
Placement to Another, Causing Them Severe Emotional and Psychological Harm |
30 |
|
5. DHS Prevents Plaintiff Children From Maintaining Critical Family Ties While in Sate Custody |
32 |
|
C. DHS’s Failure to Adequately Monitor the Safety of Children in DHS Custody Subjects Plaintiff Children to Harm or Imminent Risk of Harm |
33 |
Page ii
|
1. Excessive Caseloads, Inexperienced Caseworkers, Inadequate
Supervision, High Turnover and Inadequate Training Threaten Basic Child Safety |
33 |
|
2. DHS’s Dangerous Monitoring and Oversight Practices of Foster
Homes and Facilities Harm Plaintiff Children and Expose Them to Imminent Risk of Harm |
35 |
|
D. Additional Dangerous Failings by DHS Subject Plaintiff Children
to Harm or Imminent Risk of Harm |
38 |
|
1. DHS Fails to Provide Adequate Foster Care Maintenance Payments for the Care of Plaintiff Children |
38 |
|
2. DHS Fails to Plan for and Take Mandated Steps to Find Permanent
and Safe Homes and Exits From State Custody for Plaintiff Children |
40 |
| 3. DHS Fails to Arrange Mental Health Services for Plaintiff Children | 41 |
|
4. Plaintiff Children Are Denied Adequate and Effective Legal Representation in the Juvenile Courts |
42 |
| 5. Breach of the Oklahoma State Plan Contracts Harms Plaintiff Children | 43 |
| VII. Additional Factual Allegations Concerning Named Plaintiffs | 44 |
| VIII. Causes of Action | 77 |
| IX. Prayer for Relief | 85 |
Page 1
I. Introduction
1. This case is brought by the Named Plaintiffs, nine children in foster care, on behalf of themselves and the more than 10,000 children of Oklahoma who have been removed from their homes by the State. These foster children, who are or will be in the legal custody of the Oklahoma Department of Human Services (“DHS”), bring this action because DHS, under the supervision of Defendants, who directly and indirectly control and are responsible for the administration of Oklahoma’s foster care system, have failed in their basic and fundamental duty to provide for the safety and care of these Oklahoma citizens.
2. Children who require placement in foster care are the most vulnerable members of Oklahoma society. They are found in the four corners of the State; they come from cities, suburbs and rural areas.
3. In all cases, these children find themselves in DHS custody as a result of desperate and extreme circumstances that threaten their ability to live normal childhoods, to grow and develop and, in many instances, to even survive. But as this Complaint alleges, DHS is victimizing its foster children. Rather than discharging its duty to keep the foster children in its custody reasonably free from harm, because of its pervasive, longstanding and well documented deficiencies in providing basic living situations, services and monitoring, DHS has harmed and continues to harm Oklahoma’s foster children physically, emotionally and psychologically – repeatedly and without any plan to end that harm, as set forth herein.
4. As just one stark example, Named Plaintiff C.S. has been in foster
care
since shortly after her birth, and in her eleven short months on this
planet, DHS has placed her in
seventeen different homes and facilities. While in foster care, she has
suffered a fractured skull
as a result of physical abuse in an unsafe foster home; she has suffered
severe dehydration and
Page 2
seizures as a result of neglect in an unsafe group facility; and she has suffered a severe illness as a result of neglect in another unsafe foster home. Plaintiffs bring this case to redress and correct the aggregate problems and failures at DHS that, inter alia, have resulted in such victimization.
5. This civil rights class action is brought pursuant to 42 U.S.C. § 1983 on behalf of all foster children who are or will be in the legal custody of DHS. The foster children name as Defendants the Governor of the State of Oklahoma, the nine members of the Oklahoma Commission for Human Services, and the Director of DHS (collectively, “Defendants”). All Defendants are sued in their official capacities. Defendants directly and indirectly control and are responsible for the policies and practices of DHS, including those set forth herein.
6. Oklahoma owes no higher duty than to stop victimizing her foster children. DHS’s failure to provide for the basic safety and care of foster children in DHS custody subjects the children to significant, ongoing harm and imminent risk of harm, deprives them of chances for safe and stable childhoods, and violates their rights under the United States Constitution and specific federal statutes. This action seeks solely declaratory and injunctive relief in order to stop continuing violations of the legal rights of Oklahoma’s foster children and to prevent DHS, by it policies and practices, from continuing to harm the very children who rely on the State for their care and protection.
7. The sole purpose of this case is to redress the ongoing aggregate
problems
and failures at DHS, an executive agency of the State of Oklahoma,
including: (1) its failure to
provide safe and adequate living situations for foster children and to
meet their service needs;
and (2) its failure to adequately monitor the safety of foster children
due to an overburdened and
mismanaged workforce and dangerously inadequate oversight practices.
Page 3
8. DHS bears the responsibility for having operated – and continuing to operate – a foster care system in which children routinely become victims of DHS’s failures. These failures include, inter alia:
• A drastic shortage of foster homes.
DHS fails to develop and maintain an adequate number and array of foster homes and other appropriate placements for foster children. As a result, foster children are placed wherever a bed is available and without regard to their individual needs.
• Overcrowded and dangerous emergency shelters.
DHS routinely houses foster children, including infants and toddlers, in overcrowded and unsafe emergency shelters for extended periods of time, sometimes in excess of six months, because DHS has nowhere else to house them.
• Unsafe and inappropriate foster homes and facilities.
DHS utilizes foster homes that jeopardize the safety of children, including homes with adults who have criminal convictions, homes that are dirty, overcrowded or lack adequate food, and homes in which supervision is dangerously lacking. DHS also utilizes facilities to house foster children that are often unsanitary, lack adequate supervision and employ staff who have not been properly trained and who have not even gone through background checks to identify criminal records or histories of abusive behavior.
• Excessive caseworker caseloads and an inexperienced and unstable workforce.
For each of the past six years, the Oklahoma Child Death Review Board has recommended the hiring of more caseworkers to meet reasonable professional standards in order to reduce the number of deaths due to child abuse or neglect. While those standards limit caseloads to twelve to fifteen children per caseworker, DHS caseworker are regularly assigned more than fifty children each, with some caseworkers responsible for more than one hundred children. As a result, caseworkers cannot make required visits with foster children and caregivers, and cannot adequately monitor child safety. The high caseloads also contribute to high turnover and an inexperienced workforce.
• Grossly inadequate payment for the care of foster children.
Oklahoma fails to provide payments to those caring for foster children that even approach the actual cost of those children’s care. The “foster care maintenance payments” set by DHS are grossly insufficient to provide basic support for foster children, and contribute to the shortage of foster homes.
9. As a result of these failures, DHS harms foster children and exposes
them
to imminent risks of harm, including the following:
Page 4
• Abuse or neglect of foster children by foster parents or facility staff.
For the past five years, Oklahoma has been among the worst three states in the nation, and for two years the very worst in the nation, in its rate of “abuse in care” of foster children. This includes physical abuse, sexual abuse or extreme neglect inflicted on foster children by foster parents or staff at shelters or other facilities. Abuse of children in state foster care custody takes place at a higher rate than for children in the general population: in two of the past five years, the “abuse in care” rate of children in DHS custody exceeded the rate of child abuse or neglect in the general population in Oklahoma. And these statistics actually minimize the reality of in-care abuse; the rates reported by DHS significantly undercount the actual frequency of such abuse.
• Abuse or neglect of foster children by their biological parents while in DHS custody.
While still in DHS custody, foster children in Oklahoma are victims of abuse or neglect by their biological parents when sent by DHS on overnight unsupervised visits or “trial home reunifications.” The rate of this harm to foster children is more than double the rate at which children are abused or neglected by foster parents or facility staff.
• Denial of opportunities to maintain critical family relationships.
Oklahoma foster children are routinely separated from their siblings who are also in DHS custody and DHS fails to arrange visits or other contact with siblings when these separations occur. DHS also fails to provide to foster children visits and other contact with biological parents, even when reunification is the goal set by DHS.
• Frequent moves among multiple inappropriate homes and facilities.
Recent state data shows that 34% of foster children in Oklahoma had experienced four or more placements and 17% – approximately 1,700 children – had experienced six or more placements while in DHS custody. Such routine moves from one inappropriate placement to another inflict psychological harm and destroy these children’s trust in adults, preventing them from developing an attachment to any family.
10. These failures and harms have been well documented and known to DHS
for many years. In the face of that knowledge, DHS has consistently
failed to address, let alone
ameliorate, these failures. The harms – the physical, emotional and
psychological injury and
deterioration of foster children while in DHS custody – inflicted
daily on foster children in
Oklahoma, and the imminent risks of such harms to which they are
repeatedly exposed, are the
direct result of the failures by DHS alleged in this Complaint.
Page 5
II. Jurisdiction and Venue
11. This action is brought pursuant to 42 U.S.C. § 1983, alleging violations of the United States Constitution and federal statutes. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
12. Venue in this district is proper, pursuant to 28 U.S.C. § 1391(b), because the claims arise in this district.
III. The Parties
A. The Named Plaintiffs1
D.G.
13. D.G. is a five-month-old boy in foster care in DHS custody who has been adjudicated deprived. He has been in DHS custody since shortly after his birth and, over the past five months, DHS has already moved him through at least four placements. DHS’s placements for him have included one twenty-two-day stay at a grossly inappropriate and overcrowded emergency shelter that fails to provide adequate care and supervision for infants, where D.G. was inadequately supervised and suffered a fractured skull when he was dropped by a DHS worker who was carrying two babies at once. DHS is likely to move D.G. yet again from his current, temporary foster home.
14. Named Plaintiff D.G. appears through his Next Friend G. Gail
Stricklin.
Ms. Stricklin is the Guardian Ad Litem for D.G. in the Oklahoma County
Juvenile Court. Ms.
Stricklin maintains her principal office at 2932 N.W. 122nd
Street, Suite 4, Oklahoma City,
Oklahoma 73120.
1 Pursuant to Rule LCvR5.3 of the
Local Civil Rules of the United States District Court
for the Northern District of Oklahoma, the minor Named Plaintiffs are
identified only by
their initials.
Page 6
C.S.
15. C.S. is an eleven-month-
16. Named Plaintiff C.S. appears through her Next Friend Barbara Sears.
Ms.
Sears resides at 1532 Fir Drive, Sand Springs, OK 74063.
17. J.B. is a sixteen-month-
Page 7
18. Named Plaintiff J.B. appears through his Next Friend Buddy Faye
Foster.
Ms. Foster is the Court Appointed Special Advocate (“CASA”) for J.B.
in the Oklahoma County
Juvenile Court. Ms. Foster resides at 600 N.W. 4th
Street, #120, Oklahoma City, OK 73102.
A.P.
19. A.P. is a four-year-old girl in foster care in DHS custody who has
been
adjudicated deprived. In the eighteen months that A.P. has been in DHS
custody, DHS has
already moved her through six placements. DHS’s placements for her
have included the home of
a relative who had a prior history of child abuse, where A.P. was
sexually abused, and an unsafe
and inadequately supervised trial home reunification with her biological
father. DHS is likely to
move A.P. yet again from her current, temporary foster home.
20. Named Plaintiff A.P. appears through her Next Friend Leslie A. Ellis
Kissinger. Ms. Kissinger is the court-appointed attorney for A.P. in the
Rogers County Juvenile
Court. Ms. Kissinger maintains her principal office at P.O. Box 1530,
Claremore, OK 74018.
J.A.
21. J.A. is a five-year-old boy in foster care in DHS custody who has
been
adjudicated deprived. In the twelve months that J.A. has been in DHS
custody, DHS has already
moved him through nine placements. DHS’s placements for him have
included four separate
stays in grossly inappropriate and overcrowded emergency shelters in
four different counties.
DHS is likely to move J.A. yet again from his current, temporary
foster home.
22. Named Plaintiff J.A. appears through his Next Friend Buddy Faye
Foster.
Ms. Foster is the CASA for J.A. in the Oklahoma County Juvenile Court.
Ms. Foster resides at
600 N.W. 4th Street, #120,
Oklahoma City, OK 73102.
Page 8
J.P.
23. J.P. is a seven-year-old boy in foster care in DHS custody who has
been
adjudicated deprived. In the eighteen months that J.P. has been in DHS
custody, DHS has already moved him through eight placements. DHS’s placements for him
have included an
unsafe and poorly monitored foster home where he was physically abused
repeatedly for almost
a year. DHS is likely to move J.P. yet again from his current,
temporary foster home.
24. Named Plaintiff J.P. appears through his Next Friend G. Gail
Stricklin.
Ms. Stricklin is an attorney of record for J.P. in the Oklahoma County
Juvenile Court. Ms.
Stricklin maintains her principal office at 2932 N.W. 122nd
Street, Suite 4, Oklahoma City,
Oklahoma 73120.
R.J.
25. R.J. is a twelve-year-
26. Named Plaintiff R.J. appears through his Next Friend Paul Naylor.
Mr.
Naylor is the counsel of record for R.J. in the Tulsa County Juvenile
Court. Mr. Naylor
maintains his principal office at 1701 S. Boston Avenue, Tulsa, OK
74119.
Page 9
G.C.
27. G.C. is a thirteen-year-
G.C. currently lives in a poorly monitored and overly restrictive
institutional facility, and
continues to deteriorate while in DHS custody as she waits
indefinitely for a stable and
permanent placement.
28. Named Plaintiff G.C. appears through her Next Friend Anne Sublett.
Ms.
Sublett is the counsel of record for G.C. in the Tulsa County Juvenile
Court. Ms. Sublett
maintains her principal office at 4000 One Williams Center, Tulsa, OK
74172-0148.
K.T.
29. K.T. is a sixteen-year-
Page 10
specialized programs or treatment for her developmental delays, and
she continues to deteriorate
while in DHS custody as she waits indefinitely for a stable and
permanent placement.
30. Named Plaintiff K.T. appears through her Next Friend Barbara
Sears.
Ms. Sears is an attorney of record for K.T. in the Oklahoma County
Juvenile Court. Ms. Sears
resides at 1532 Fir Drive, Sand Springs, OK 74063.
31. Defendant C. Brad Henry is the Governor of Oklahoma and is sued in
his
official capacity. Pursuant to Article VI, Section 8 of the
Constitution of Oklahoma, the
executive power of the State is vested in the Governor. Pursuant to
that Section, the Governor is
responsible for ensuring that all executive departments and agencies
within the state, including
DHS, faithfully execute and comply with applicable federal and state
law. Pursuant to Article XXV, Section 3 of the Constitution of Oklahoma, the Governor has the
power to appoint all nine
members of the Oklahoma Commission for Human Services. Governor Henry
maintains his
principal place of business at the Governor’s Office, State Capitol
Building, 2300 N. Lincoln
Boulevard., Room 212, Oklahoma City, OK 73105.
32. Defendant Richard L. DeVaughn is Chairman of the Oklahoma
Commission for Human Services and is sued in his official capacity.
Pursuant to Article XXV,
Sections 3 and 4 of the Constitution of Oklahoma, the Commission for
Human Services is
responsible for formulating the policies and adopting the rules and
regulations for the
administration of DHS, and for appointing the Director of DHS. The
Oklahoma Commission for
Human Services is a nine-member governing board for DHS whose members
serve by
appointment of the Governor in staggered nine-year terms. The Oklahoma
Commission for
Human Services maintains its principal office at Oklahoma Department
of Human Services,
Sequoyah Memorial Office Building, 2400 N. Lincoln Boulevard, Oklahoma
City, OK 73105.
33. Defendant Ronald C. Mercer is Vice-Chairman of the Oklahoma
Commission for Human Services and is sued in his official capacity.
34. Defendant Wayne Cunningham is a member of the Oklahoma Commission
for Human Services and is sued in his official capacity.
35. Defendant Jay Dee Chase is a member of the Oklahoma Commission for
Human Services and is sued in his official capacity.
36. Defendant Patrice Dills Douglas is a member of the Oklahoma
Commission
for Human Services and is sued in her official capacity.
37. Defendant Michael L. Peck is a member of the Oklahoma Commission
for
Human Services and is sued in his official capacity.
38. Defendant Garoldine Webb is a member of the Oklahoma Commission
for
Human Services and is sued in her official capacity.
39. Defendant Aneta R. Wilkinson is a member of the Oklahoma
Commission
for Human Services and is sued in her official capacity.
40. Defendant Rev. George E. Young is a member of the Oklahoma
Commission for Human Services and is sued in his official capacity.
41. Defendant Howard H. Hendrck is the Director of DHS and is sued in
his
official capacity. Pursuant to Article XXV, Section 4 of the
Constitution of Oklahoma, the
Director of DHS serves as the chief executive and administrative
officer of the Department. The Director of DHS is responsible for administering all DHS child welfare
services and programs
and assuring that all such services and programs operate in conformity
with constitutional,
Page 12
statutory and regulatory requirements. Pursuant to Oklahoma
Administrative Code § 340:1-1-4,
the Director of DHS is charged with the responsibility for day-to-day
direction of the activities
necessary for DHS to accomplish its mission, and the Director’s
duties include serving as chief
spokesperson for DHS and ensuring that actions approved by the
Commission for Human
Services are carried out. Director Hendrick serves by appointment of
the Oklahoma Commission
for Human Services. Director Hendrick maintains his principal office
at Oklahoma Department
of Human Services, Sequoyah Memorial Office Building, 2400 N. Lincoln
Boulevard,
Oklahoma City, OK 73105.
42. This action is properly maintained as a class action pursuant to
Rules 23(a)
and (b)(2) of the Federal Rules of Civil Procedure.
43. The class is defined as “al children who are or will be in the
legal custody
of the Oklahoma Department of Human Services (1) due to a report or
suspicion of abuse or
neglect, or (2) who are or will be adjudicated deprived due to abuse
or neglect.” As used in this
Complaint, the members of the class are referred to as the “Class”
or the “Plaintiff Children” or
“foster children.”
44. According to state data from 2006, approximately 10,000 foster
children
were in the legal custody of DHS. The Class is sufficiently numerous
to make individual joinder
impracticable.
45. The questions of law and fact raised by the Named Plaintiffs are
common to
and typical of those raised by the putative class members. Named
Plaintiffs, like the other Plaintiff Children, are children in DHS’s legal custody who rely on
DHS for their safety and
Page 13
well-being, and have been harmed or are at imminent risk of harm by
the common legal
deficiencies of Oklahoma’s foster care system alleged in this
Complaint.
46. Questions of fact common to the Class include:
a. Whether DHS has a policy or practice of failing to develop and
maintain a sufficient number and array of safe and appropriate
placements for Plaintiff Children, causing significant harm and risk
of harm to Plaintiff Children’s safety, health and well-being;
b. Whether DHS has a policy or practice of failing to adequately
monitor the safety of Plaintiff Children, causing significant harm
and risk of harm to Plaintiff Children’s safety, health and
wellbeing;
c. Whether DHS has a policy or practice of placing Plaintiff Children
in unsafe and inappropriate homes and facilities, causing
significant harm and risk of harm to Plaintiff Children’s safety,
health and well-being;
d. Whether DHS has a policy or practice that has the effect of
subjecting Plaintiff Children to abuse, neglect and other
maltreatment while in DHS custody causing significant harm and
risk of harm to Plaintiff Children’s safety, health and well-being;
e. Whether DHS has a policy or practice of subjecting Plaintiff
Children to unreasonably frequent moves from placement to
placement, causing significant harm and risk of harm to Plaintiff
Children’s health and well-being;
f. Whether DHS has a policy or practice of failing to arrange for and
facilitate Plaintiff Children’s family relationships, causing
significant harm and risk of harm to Plaintiff Children’s health and
well-being;
g. Whether DHS has a policy or practice of failing to place Plaintiff
Children in the least restrictive and most family-like settings
appropriate to their needs, causing significant harm and risk of
harm to Plaintiff Children’s health and well-being;
h. Whether DHS has a policy or practice of failing to provide
adequate foster care maintenance payments and an adequate
methodology for calculating those payments for the care of
Plaintiff Children; and
Page 14
i. Whether the conduct described in sub-paragraphs a through h,
above, is contrary to law, reasonable professional standards and
outside the exercise of any professional judgment.
47. Questions of law common to the Class include:
a. Whether DHS’s policies and practices violate Plaintiff
Children’s
substantive due process rights to bereasonably free from harm and
imminent risk of harm while in state custody, guaranteed by the
Fourteenth Amendment to the United States Constitution;
b. Whether DHS’s policies and practices violate Plaintiff
Children’s
rights to family association and integrity, guaranteed by the First,
Ninth, and Fourteenth Amendments to the United States
Constitution;
c. Whether DHS’s policies and practices violate Plaintiff
Children’s
rights established by the Adoption Assistance and Child Welfare
Act of 1980, as amended by the Adoption and Safe Families Act of
1997, and relevant federal regulations;
d. Whether DHS’s policies and practices violate Plaintiff
Children’s
and Fifth the by guaranteed process, due procedural to rights
Fourteenth Amendments to the United States Constitution; and
e. Whether DHS’s policies and practices violate Plaintiff
Children’s
rights as direct and intended third-party beneficiaries under the
Title IV-E State Plan contract executed between Oklahoma and the
federal government.
48. The legal violations alleged by the Named Plaintiffs and the
resultant harms
are typical of those raised by each member of the putative class.
49. Named Plaintiffs will fairly and adequately protect the
interests of the
members of the putative class.
50. Each Named Plaintiff appears by a Next Friend pursuant to
Federal Rule of
Civil Procedure 7(c), and each Next Friend is sufficiently familiar
with the facts of the child’s
situation to fairly and adequately represent the child’s interests
in this litigation, and is dedicated
to the child’s best interests in this litigation.
Page 15
51. The Named Plaintiffs and the putative class are represented by:
a. R. Thomas Seymour, a licensed Oklahoma attorney with extensive
experience in complex civil litigation, civil rights matters and
class
actions in the federal courts, and the law firm of Seymour &
Graham, LLP;
b. Frederic Dorwart, a licensed Oklahoma attorney with extensive
experience in complex civil litigation and class actions in the
federal courts, and the law firm of Frederic Dorwart, Lawyers;
c. Doerner, Saunders, Daniel & Anderson, LLP, an Oklahoma law
firm with extensive experience in complex civil litigation and class
actions in the federal courts;
d. Day Edwards, Propester & Christensen, PC, an Oklahoma law
firm
with extensive experience in complex civil litigation and class
actions in the federal courts;
e. Attorneys employed by Children’s Rights, a national nonprofit
legal organization whose attorneys have extensive experience and
expertise in child welfare class actions nationally; and
f. Kaye Scholer LLP, an international private law firm with
extensive
experience in complex civil litigation and class actions in the
federal courts.
52. Counsel retained by the Named Plaintiffs are competent and experienced
in
class action litigation, child welfare litigation and complex civil
litigation.
53. The attorneys and entities listed above have investigated all
claims in this
action and have committed sufficient resources to represent the
Class through trial and any
appeals.
54. The attorneys and entities listed above know of no conflicts
between or
among members of the putative class.
55. Defendants, who directly and indirectly control or are
responsible for the
polices and practices of DHS, have acted or failed to act in a
manner generally applicable to the
putative class, making class-wide declaratory and injunctive relief
appropriate and necessary.
Page 16
V. Dangerous Failures in Oklahoma’s Foster Care System Have
Been Documented
Reform
56. Oklahoma’s child welfare system has steadily deteriorated
since 1997 and
is and has been incapable of fulfilling its duties to Plaintiff
Children. DHS has been aware of,
yet has failed to address, these well-known problems.
57. In 1997, because of “[h]igh levels of dissatisfaction with,
and lack of
confidence in, Oklahoma’s fragmented and complex foster care
system,” the Oklahoma House of
Representatives Human Services Committee issued a report entitled
“Interim Study of the Foster
Care System Throughout Oklahoma.” This report was based on “an
in-depth study of the foster
care system in which every foster care home in the state was
visited.” The 1997 report described
several emerging problems with DHS that were causing harm to
children. It identified a shortage
of foster homes and a lack of support for foster parents, stating
“[w]e recruit foster parents and
we don’t support them afterwards, and then we lose them.”
58. The 1997 report recommended that: DHS reorganize the agency
structure
to create direct linkage among DHS, policy makers and field
personnel; DHS “[r]eview number
of staff, level and cases per staff to determine if more staffing or
realignment of staff is required
to adequately service the foster care program;” and DHS hire
“[m]ore caseworkers/
59. In 1999, the Oklahoma legislature appointed a Child Welfare
System
Reform Review Committee to study “the policies, procedures, and
statutes governing
Oklahoma’s child abuse and child welfare system and to make
recommended revisions to this
system.” This Committee issued a public report on January 24,
2000, which stated that “[t]he
Page 17
caseloads for child protective services workers need to be within
the bounds recommended by
the national standard. The subcommittee believes [there is a] need
for additional child welfare
workers.”
60. In June of 2001, the Governor’s Task Force on Children in
Custody
presented its Annual Report to the Governor and the Director of DHS,
which focused on the lack
of support given by DHS to foster parents throughout the state. The
report stated that there were
“foster parents with many years of experience who felt that the
hassles and the lack of support
from the Department made it next to impossible to continue to care
for the children.” The report
criticized DHS for retaliating against foster parents who raised
issues with DHS: “any foster
parent who ‘makes waves’ is at risk of losing the children in
their home and having their home
closed by the Department. Some foster parents even expressed fear of
their own children and
grandchildren being removed by the Department.” The report also
highlighted that children in
DHS custody were frequently placed in homes without foster parents
receiving adequate
information about the child’s needs, medical history or family
history, that DHS was performing
only cursory face-to-face visits with children in custody, and that
DHS caseworkers were not
equipped to answer foster parents’ most basic questions about the
status of their child’s case. In
the years since that report was published, DHS has failed to correct
any of the deficiencies
identified in the report.
61. Because Oklahoma receives federal funding to operate its child
welfare
system, it is subject to periodic Child and Family Service Reviews
(“CFSRs”), conducted by the
Administration for Children and Families, a division of the United
States Department of Health
and Human Services (“HHS”). These reviews are designed to assess
whether states are in
Page 18
substantial conformity with federal child welfare benchmarks in the
areas of child safety,
permanency and well-being.
62. Oklahoma’s initial CFSR was completed in 2002. In nearly every
area
reviewed, Oklahoma failed to meet federal standards, often by a wide
margin. Oklahoma failed
with respect to each of the seven “safety, permanency and
well-being outcomes” tracked by the
review, which included: protecting children from abuse and neglect;
safely maintaining children
at home when possible and appropriate; providing permanency and
stability in children’s living
situations; preserving continuity of family relationships and
connections; enhancing families’
capacity to provide for children’s needs; ensuring that children
receive services to meet their
educational needs; and ensuring that children receive services to
meet their physical and mental
health needs.
63. The 2002 CFSR found that DHS failed to meet the requirement that
“[c]hildren are, first and foremost, protected from abuse and
neglect,” noting that the failure was
due to a “high level of staff turnover among the child welfare
agency’s front-line workers, which
results in both inexperienced staff and excessive staff
caseloads.” HHS found that Oklahoma
was “[n]ot making sufficient efforts to reduce the risk of harm
to children.” (emphasis added).
64. Oklahoma’s second CFSR took place in August of 2007. Although
the
results of that CFSR are not yet public, DHS published its own CFSR
“Statewide Assessment” in
anticipation of the federal review. The CFSR Statewide Assessment
documents DHS’s
continuing failure to protect children. For example, the reported
frequency of foster children
abused or neglected by foster parents or residential facility staff
while in DHS custody was 1.2%
for the twelve-month period ending March 31, 2006, which is nearly four
times the maximum
allowed federal benchmark of 0.32%.
Page 19
65. The 2007 CFSR Statewide Assessment also documented the lack of
foster
homes. Over 95% of DHS’s Child Welfare staff who were interviewed
as part of the CFSR
Statewide Assessment reported there were not enough foster homes for
children in DHS custody. As a result, DHS often put foster children in placements that were
likely to fail, resulting in
children frequently being forced to move from one placement to
another.
66. Echoing the 2002 CFSR, the 2007 CFSR Statewide Assessment
repeatedly
tied DHS’s failures to worker turnover, inexperienced staff,
excessive caseloads and an
insufficient number of foster homes.
67. The Oklahoma Child Death Review Board annually publishes the
results of
investigations conducted upon the death of a child. In every year
from 2001-2006, the
Oklahoma Child Death Review Board documented that DHS workers have
caseloads two to
three times higher than national standards.
68. Every year, the Oklahoma Child Death Review Board has
recommended
that DHS bring worker caseloads into compliance with nationally
recognized standards in order
to reduce child deaths and, in 2004, the Board explicitly
recommended that DHS “hire additional
child welfare staff in order to be in compliance with accepted
national standards . . . in order to
reduce the number of deaths due to child abuse/neglect.”
69. The dangerous failures at DHS have been repeatedly documented in
the
Oklahoma media over the past three years. For example, on December
18, 2005, the Tulsa World
reported on the death of Felipe Gonzalez, a
three-year-old foster child in Oklahoma City
who was killed while living in a foster home. The article, entitled
“Who Dropped the Ball?”
stated that while “Oklahoma DHS officials approved the placement
of Felipe and his sister in the
Page 20
[foster] home, state officials never conducted the required in-home
visits during the six months
the siblings [lived in that home].”
70. On February 19, 2006, the Tulsa World published an
editorial entitled
“Oklahoma’s Child Welfare System Needs Restructuring.” This
editorial stated that DHS “is the
system that is supposed to protect children, but many times it is
the system that re-victimizes a
child. For the most part, this isn’t the fault of the many caring
professionals that work in the
child welfare system. It is the system that needs to be turned
upside down, inside out, and
changed.”
71. On September 24, 2006, the Daily Oklahoman published an
editorial
entitled “Foster Care System Needs Reform.” This editorial
chronicled DHS’s “glaring
problems,” including “inadequate numbers of foster homes across
the state, insufficient
reimbursement to foster parents for children’s basic needs [and]
burdensome case loads for DHS
case workers who monitor these Children[.]”
72. On December 7, 2006, an article in the Daily Oklahoman entitled
“Welfare
Workers Knew of Problems Before Child’s Death, Records Show”
reported on the death of
Samuel Barber, a three-month-
Page 21
VI. Failures in the Operation of the Oklahoma Foster Care System
73. DHS operates a system in which the long-known, pervasive failure
to
provide for the basic safety and well-being of children continues to
directly harm foster children
in DHS custody and places them at imminent risk of harm. As alleged
herein, this failure
includes, and is a direct result of: (1) DHS’s failure to provide
safe and adequate living
situations for Plaintiff Children and to meet their service needs,
including grossly inadequate
foster care maintenance payments to foster parents and the failure
to plan for and take mandated
steps to find permanent and safe homes for Plaintiff Children
outside of state custody; and (2)
DHS’s failure to adequately monitor the safety of Plaintiff
Children due to an overburdened and
mismanaged workforce and dangerously inadequate oversight practices.
These failures are
obvious, and the harm and imminent risk of harm they cause have been
well documented and
known to DHS, yet DHS has failed to take appropriate steps to
address and ameliorate them.
74. As a result, Defendants, who directly and indirectly control and
are
responsible for the policies and practices of DHS, have failed to
exercise any professional
judgment and have acted with deliberate indifference to the safety,
well-being and legal rights of
Plaintiff Children.
A. Plaintiff Children Are Victimized While in DHS Custody
75. DHS’s failure to provide Plaintiff Children with safe and
adequate living
situations and services and its failure to adequately monitor
Plaintiff Children’s safety directly
cause Plaintiff Children to suffer from abuse or neglect while in
DHS custody at an alarming
rate. This “abuse in care” rate includes reports of physical
abuse, sexual abuse or extreme
neglect at the hands of foster parents or facility staff who are
providing direct care for Plaintiff
Page 22
Children under the ostensible supervision of DHS. Such reports are
investigated and ultimately
“confirmed” by DHS.
76. According to state data, in each of the past five years, from
Federal Fiscal
Year (“FFY”) 2001 through FFY 2005, Oklahoma has been among the
worst three states in the
country for confirmed abuse or neglect of foster children in state
custody. In four of those five
years, Oklahoma ranked worst or second worst in the nation and, in
two of those years, Oklahoma had the single highest
rate of confirmed abuse of foster children in state custody in the
nation.
77. Oklahoma’s rate of abuse or neglect of children in foster care
has invariably
far exceeded the benchmarks set by the federal government. In 2002,
1.62% of Oklahoma foster
children were abused or neglected, almost three times greater than the
federal benchmark of
0.57% for children in foster care; in 2003, the Oklahoma rate rose to
1.88%, or 3.3 times the
federal benchmark. In fact, in 2002 and 2003, the rates of abuse and
neglect of children in foster
care in Oklahoma were so high that Plaintiff Children suffered abuse
or neglect at a higher rate
than children in the general population (as recorded in 2002 and 2003
at 1.57% and 1.43%,
respectively)
78. In FFY 2004, 1.23% of Oklahoma foster care children were the
victims of
confirmed abuse or neglect while in state custody, more than twice the
federal benchmark. The
following year, FFY 2005, the rate was 1.17%, again more than twice
the federal benchmark.
79. Most recently, Oklahoma’s performance in subjecting Plaintiff
Children to
abuse or neglect has only worsened on a national scale. Last year, the
federal government
published a new benchmark of a maximum rate of abuse or neglect of
0.32%, reflecting a lower
abuse in care standard nationwide. According to state data, for the
twelve-month period ending
Page 23
March 31, 2006, 1.2% of children in foster care in Oklahoma were
abused or neglected while in
state custody, almost four times the current national standard.
80. The federal abuse in care measure discussed above includes only
foster
children abused or neglected by foster parents or residential facility
staff, and excludes foster
children who are the victims of confirmed abuse or neglect by their
biological parents while still
in the state’s custody (i.e., while on a visit or on trial
home reunification)
81. In Oklahoma, the number of foster children abused or neglected by
their
biological parents while still in DHS custody is dangerously high and
increasing. According to
state data, another 2.04% of Oklahoma foster care children were the
victims of confirmed abuse
or neglect by their biological parents while in DHS custody. In FFY
2005, this rate rose to 2.2%,
and by the twelve-month period ending March 31, 2006, rose again, to
2.3%.
82. From July 1, 2004 to March 31, 2006, over 1,700 foster children in
Oklahoma were victims of confirmed abuse or neglect by foster parents,
facility staff or their
biological parents while in DHS custody.
83. The official rate of abuse and neglect of foster children in DHS
custody outlined above consistently
underreports the occurrence of abuse in care, since those rates only
include incidents of abuse or neglect which have been investigated and
confirmed by DHS.
Incidents of abuse or neglect, and other serious maltreatment of foster
children such as the use of
corporal punishment and other prohibited forms of discipline, occur
regularly and are never
identified or reported, let alone investigated, due to DHS’s failure
to adequately monitor the
safety and well-being of children in its care.
Page 24
B. DHS Houses Plaintiff Children in Dangerous and Inappropriate
Placements
84. DHS has engaged in a policy, pattern, custom and/or practice of
placing
children in dangerous and inappropriate placements that fail to provide
adequate protection and
care. DHS has been and is fully aware of the dangers of this policy,
pattern, custom and/or
practice, but has failed to act to prevent it or correct it. By
subjecting Plaintiff Children to
placement practices that are emotionally, psychologically and physically
injurious to them, DHS
has acted and continues to act with deliberate indifference to the
welfare of Plaintiff Children
and to Plaintiff Children’s legal rights, and outside any reasonable
exercise of professional
judgment. This policy, pattern, custom and/or practice has caused, and
is causing, direct and
severe harm or imminent risk of harm to Plaintiff Children.
1. DHS’s Failure to Develop and Maintain a Sufficient
85. DHS has failed to develop and maintain a sufficient number and array
of
foster care placements necessary to allow DHS to place Plaintiff
Children in safe environments
where their basic needs can be met. Despite being on notice for years of
a growing and drastic
shortage of foster homes and other appropriate foster care placements,
DHS has failed to take
even the most basic steps to address the problem.
86. The severe shortage of foster care placements strains the DHS
placement
system, leading to placement matches driven solely by the immediate
availability of a bed rather
than a child’s individual needs, and resulting in the frequent
“disruption” of foster homes and the
movement of foster children from one placement to another.
87. The placement shortage also causes DHS to keep open dangerous homes
and facilities, without addressing known safety problems. DHS places
Plaintiff Children in
Page 25
unsafe, unsupported or unsuitable foster homes and facilities, and
leaves foster children, even
infants and toddlers, languishing in emergency shelters. The shortage is
particularly severe for
adolescents, and for children who require homes with foster parents who
have specialized
training and supports to address behavioral problems (also called
“therapeutic foster care”
homes), or who otherwise have significant mental health or behavioral
needs. At the same time,
DHS frequently places older foster children in institutional facilities
for long periods of time
when they should be in less restrictive placements.
2. DHS Unnecessarily Institutionalizes Plaintiff Children in
Dangerous 88. Under federal law, DHS policy and reasonable professional standards,
children taken into foster care custody must be placed in the least
restrictive and most family-like
environment possible, taking into account the child’s needs. DHS
routinely places children of all
ages – even infants and toddlers – for extended periods of time in
dangerous, overcrowded and
inappropriate emergency shelters without adequate staffing and services,
resulting in harm or
imminent risk of harm to Plaintiff Children.
89. Because of the grave shortage of foster homes, foster children who
are
removed from their homes and placed in DHS custody are routinely placed
in an emergency
shelter – often far from their home community – as their first
placement. In fact, all children removed from their homes in Oklahoma and Tulsa Counties, the largest
counties in the state, are
first placed in an emergency shelter. The 2002 CFSR confirmed that DHS
“was placing children
in emergency shelters without attempting to find more appropriate
alternative placements, such
as relatives or a foster home.” This practice continues today.
Hundreds of children in DHS
custody are placed in over thirty emergency shelters throughout the
state at any given time.
Page 26
90. Although the emergency shelters used to house foster children in DHS
custody are intended to be very short-term placements until appropriate
placements are found,
children in DHS custody frequently languish in emergency shelters for
many months at a time,
sometimes for more than six months, because DHS has nowhere else to
place them. Plaintiff
Children with special mental health or behavioral needs remain in
emergency shelters for
especially long periods of time. This harmful practice violates DHS’s
own policy mandating that
children younger than five years old remain in shelters for no more than
twenty-four hours.
91. Not only do children in DHS custody who are initially brought into
shelters
remain there for long periods of time, but these same children
frequently return to shelters for
long periods of time when other placements are disrupted, which occurs
frequently due to DHS’s
failure to adequately match placements with Plaintiff Children’s needs
and its failure to provide
services and supports to these placements. The 2002 CFSR reported that
this results “in a pattern
of children moving in and out of shelter care.” This practice
continues today.
92. The serious shortage of appropriate out-of-home placements for
children in DHS custody results in chronic and dangerous overcrowding at the two
largest emergency
shelters in Oklahoma.
93. DHS operates the Pauline Mayer Emergency Shelter in Oklahoma City,
which is licensed to house forty-two children, but routinely houses more
than sixty children due
to the lack of any alternative placements. In order to avoid violations
from the Fire Marshal for
overcrowding, DHS routinely shuffles children out of this shelter and
temporarily places them in
day care facilities, group homes or other placements which have
“shelter overflow”
arrangements with DHS.
Page 27
94. DHS operates the Laura Dester Emergency Shelter in Tulsa, which is
currently approved to house fifty children, but routinely houses more
than sixty children. In
2005, shelter capacity reached a record high of eighty-five children in
one day. The Dester
Shelter was over capacity on 325 days in fiscal year 2006.
95. Infants and toddlers are especially vulnerable and subject to harm
as a result
of the persistent overcrowding at DHS-operated emergency shelters. In
Tulsa, most children
entering the Dester Emergency Shelter are five years old or younger. The
“Little House” of the
Dester Emergency Shelter has twenty-five beds for newborns; at times,
however, it holds over
thirty babies. In Oklahoma City, the Annex building to the Pauline Mayer
Emergency Shelter is
used as additional shelter space to house babies, infants and toddlers
who are removed from their
homes and placed in DHS custody. It is licensed for sixteen children,
but routinely exceeds this
limit. Contrary to reasonable professional standards, DHS policy, and
outside the exercise of
any professional judgment, DHS routinely places infants and toddlers in
shelters for extended
periods of time, without appropriate staffing and services.
96. As a result of the severe overcrowding at the Tulsa and Oklahoma
City
emergency shelters, Plaintiff Children are often forced to live in
dangerous and grossly
inappropriate conditions. Children who have just been through the trauma
of being removed
from their homes due to abuse or neglect are routinely forced to sleep
on cots or in cribs in
hallways, recreation rooms and play areas of the emergency shelters and,
at times when
overcrowding is too extreme, in DHS offices.
97. Emergency shelter placements in Oklahoma City, Tulsa and elsewhere
in
the state also house children with aggressive physical or sexual
behaviors together with
Page 28
vulnerable children, including those who have been sexually abused or
have significant
developmental disabilities. This unsafe practice puts Plaintiff Children
at extreme risk of harm.
98. Additionally, when DHS places Plaintiff Children in emergency
shelters,
their education is often disrupted, sometimes for many weeks, impeding
their educational
development and access to basic and adequate education while in state
custody.
3. DHS Places Plaintiff Children in Dangerous and Inappropriate
99. As a direct result of the drastic shortage of foster care homes, DHS
routinely places Plaintiff Children in dangerous and inappropriate homes
and facilities, including
foster homes, group or institutional placements, day care facilities and
the homes of biological
parents or relatives, where Plaintiff Children are harmed or subjected
to imminent risk of harm.
100. Overcrowding in foster homes is common in Oklahoma. For example,
foster homes licensed for four foster children often have seven or more
foster children placed in
them, in addition to any biological children of the foster parents in
the home. This overcrowding
frequently prevents adequate parental supervision and places Plaintiff
Children at serious risk of
harm.
101. DHS also routinely sends Plaintiff Children to stay with their
biological
families or relatives for unsupervised visits or for unsupervised and
unmonitored trial home
reunification while still in DHS custody, in which the children’s
safety is at risk. Children often
become victims of abuse or neglect during these unsupervised visits or
unsupervised and
unmonitored trial home reunifications.
102. For example, in March of 2007, three-year-old Blake Ragsdale died
while
in DHS custody after DHS had unlawfully placed Blake back with his
biological mother without
the required court order approving the trial home reunification. Blake
was born addicted to
Page 29
methamphetamine and was diagnosed with cerebral palsy and a rare
metabolic dysfunction that
was fatal if not treated. He could not walk or talk and required a
walker, several medications and
constant supervision. However, DHS placed Blake back with his biological
mother two and a
half weeks prior to Blake’s death without notifying the Juvenile Court
or Blake’s attorney,
although Blake’s mother had not completed her treatment plan, was
unemployed, did not have a
home phone or car, and was woefully unequipped to take care of Blake’s
special medical needs.
DHS also failed to provide Blake’s mother with services necessary to
enable her to care for her
son.
103. DHS had previously reunified Blake with his mother, but Blake had
been
brought back into DHS custody in 2006 because he was in critical
condition and because his
mother had failed to take him to his necessary physical therapy
appointments. A doctor
diagnosed him with “failure to thrive.” Despite the obvious
inability of Blake’s mother to take
care of his serious medical needs and her negligence in caring for
Blake, DHS made the decision
to place Blake back with his mother again in 2007. That poor decision
resulted in Blake’s death.
104. DHS further abrogated its duties by failing to report Blake’s
death to the
Child Death Review Board or the Juvenile Judge in charge of Blake’s
case. Instead, the matter
only came to light when Blake’s case was randomly chosen for an audit
by DHS at the end of
2007. DHS then tried to hide its mistakes by removing vital information
from the final DHS
report to the District Attorney on Blake’s death. Although contained
in a draft report, the final
version of the report omitted all text stating that there had been no
court-approved trial home reunification. In addition, no one at DHS has been held accountable
for Blake’s death. The
DHS caseworker in charge of Blake’s case now works for DHS in
another county.
Page 30
105. DHS also frequently mixes aggressive, or even violent, foster
children,
including children with histories of sexual or assault offenses, in
the same foster homes, group
homes and facilities, in close proximity to non-violent children,
including those who have been
sexually abused or have developmental disabilities, placing Plaintiff
Children at imminent risk of
harm.
106. Despite the explicit prohibition in DHS policy against the use of
any form
of physical discipline or corporal punishment on children in DHS
custody, Plaintiff Children are
routinely victims of physical discipline in foster homes and
residential facilities. Even when
DHS caseworkers are aware that physical discipline has been used on
a foster child, corrective
actions are often not taken or not monitored to ensure they are
implemented.
107. DHS also routinely places children in custody in dangerous
residential
facilities and group homes, where safety hazards include unsanitary
conditions, staff shortages
and inadequate supervision, incomplete requisite staff training and
licenses, and inappropriate
grants by DHS of criminal background waivers for staff.
108. Foster children in DHS custody are also placed in DHS-licensed
day care
facilities, which are often inadequately monitored and supervised,
and which subject Plaintiff
Children to harm and imminent risk of harm.
4. DHS Frequently Moves Children From One Inappropriate Placement
109. Moving foster children among multiple homes and facilities
causes them
serious emotional and psychological harm, and damages their ability
to trust and form
relationships with adults.
110. Due to the drastic shortage of foster homes and the chronic overcrowding
in
emergency shelters, children in DHS custody are routinely placed
without regard to their specific
Page 31
needs or the training and capacity of the foster parents or other
caretakers with whom they are
placed. As a result, children are placed wherever a bed or slot is
available and placements are
frequently disrupted, causing severe emotional and psychological
harm to Plaintiff Children as
they are shuffled from one inappropriate placement to another.
111. The 2002 CFSR found that “children in the system are moved
too
frequently from one placement to another” and “placement
resources are insufficient with respect
to both quality and quantity.” It also found “that there is too
much pressure on agency workers
to move children out of shelter placement into a home. Because of
this pressure, placements are
often made without careful supervision, and when the homes do not
meet the child’s needs the
placement disrupts.” These problems continue today.
112. According to state data, as of March 31, 2006, more than 52% of
children
in DHS custody had experienced three or more placements. Almost 17%
had six or more
placements, which means that approximately 1,700 children in DHS
custody had experienced the
trauma of moving among at least six placements.
113. In reality, Plaintiff Children move even more frequently than
is reflected in
state data because DHS often fails to track Plaintiff Children’s
location and movement once they
are placed with a private provider of homes under contract with DHS,
which in turn may move
Plaintiff Children among many placements.
114. DHS routinely fails to ensure that Plaintiff Children’s
personal belongings
follow them when they move from one placement to another, adding to
the trauma that children
experience from frequent and abrupt moves while in DHS custody.
115. The multiple moves to which DHS subjects foster children forces
them to
frequently change schools, miss an unnecessary amount of school, and
fall behind in school.
Page 32
DHS regularly fails to ensure that Plaintiff Children’s
educational records follow their numerous
placement moves. In addition, for Plaintiff Children who require
special education services,
DHS routinely fails to ensure that their “Individualized Education
Plans” are prepared and
updated.
5. DHS Prevents Plaintiff Children From Maintaining Critical
Family
116. Placing children near their home minimizes the trauma they have
already
suffered from removal, helps children maintain ties with parents and
siblings, and avoids
unnecessary separation from school, other family members, friends
and existing local supports.
In contrast, due to the drastic shortage of foster homes, DHS sends
most children in foster care to
live in placements that are distant from their homes, schools and
communities, often hundreds of
miles away.
117. Due to the shortage of homes and facilities, DHS also routinely
separates
siblings in custody, causing them further harm by interfering with
critical family relationships. The 2002 CFSR found that siblings in DHS custody are rarely placed
together because of the
shortage of foster homes. This problem continues today.
118. DHS aso repeatedly fails to ensure that siblings in DHS custody
who are
not placed together at least have frequent visits with one another.
DHS’s routine denial of
Plaintiff Children’s right to sibling visitation keeps them from
maintaining critical family
relationships.
119. DHS also routinely fails to provide regular visits and contact
between
Plaintiff Children and their biological parents, even when
reunification is the goal set by DHS.
This failure deprives Plaintiff Children of critical parental
relationships and family ties.
Page 33
C. DHS’s Failure to Adequately Monitor the Safety of Children
in DHS
1. Excessive Caseloads, Inexperienced Caseworkers, Inadequate Supervision,
121. DHS caseworkers consistently have caseloads that are at least
two to three
times higher than national standards. Currently, individual
caseloads for foster care workers
(also called “permanency planning workers”) routinely exceed
fifty children, with some workers
having caseloads of more than one hundred children. Individual
caseloads for “intake” and child
protective services workers, who in Oklahoma are responsible for
ensuring safety and services to
Plaintiff Children after they are removed from their homes and
before children are assigned to a
permanency planning worker, routinely exceed forty-five
investigation cases (and over one
hundred children). Supervisors responsible for caseworkers often
supervise seven or more
caseworkers – sometimes even up to eleven workers – who in turn
have excessive caseloads,
making adequate supervision impossible.
Page 34
122. DHS caseworkers carry such high caseloads because DHS does not
have enough caseworkers to adequately serve all of the children in DHS
custody. This pervasive
problem has been well documented for many years, yet DHS has failed
to address it. For
example, every Annual Child Death Review Board report from 2001 to
2006 has stated that
lowering caseloads to meet national standards would reduce child
deaths, yet caseloads remain
dangerously high today.
123. Due to a combination of unmanageable workloads and poor
caseworker
support from DHS, turnover remains a serious problem, and leads to a
largely inexperienced
workforce. For example, due to excessive turnover at DHS, as of
April of 2007, there were one
hundred vacant child welfare specialist positions. In a December 5,
2007 article in the Daily
Oklahoman, titled “DHS Falls Behind on Cases,” a DHS representative admitted that the
majority of DHS staff has less than two years’ experience.
124. Caseworkers leave DHS so frequently that their caseloads are
absorbed by
the already overloaded existing workforce. In fact, after
caseworkers leave DHS, their cases
often remain uncovered for weeks, or sometimes even months, until
another caseworker first
looks at them.
125. In addition to high caseloads and turnover, DHS fails to
provide adequate
training to caseworkers concerning the protection and care required
of foster children andfails to
ensure appropriate supervision of caseworkers. In fact, training and
supervision are so minimal
that caseworkers frequently are not familiar with basic DHS
policies. DHS also routinely fails to
hold caseworkers accountable for their failure to exercise any
professional judgment in making
decisions concerning the care of foster children.
Page 35
2. DHS’s Dangerous Monitoring and Oversight Practices of Foster
Homes and
126. DHS has a policy, pattern, custom and/or practice of providing
inadequate
monitoring and oversight of foster homes and facilities that house
Plaintiff Children – both DHSoperated
homes and facilities and those that are directly managed by private
agencies under
contract with DHS. As a direct result of DHS’s failure to
appropriately screen, approve and
monitor homes and facilities where children in DHS custody are
placed, Plaintiff Children have
been and continue to be harmed and placed at imminent risk of harm.
127. DHS caseworkers fail to make required visits with foster
children and their
caregivers. Regular caseworker visits are necessary for monitoring a
child’s safety and wellbeing
and the appropriateness of the child’s placement, identifying the
child’s needs, and
arranging and monitoring the delivery of services to meet those
needs. DHS policy requires
caseworkers to make regular face-to-face contact at least once a
month with the Plaintiff
Children on their caseloads and with those children’s caregivers,
and also to visit foster homes at
least monthly. For Plaintiff Children who are placed in emergency
shelters, DHS caseworkers
must have face-to-face contact within twenty-four hours of their
entry into the shelter and a
minimum of weekly visits while the child remains in the shelter.
128. Due to excessive caseloads, DHS caseworkers routinely fail to
visit
Plaintiff Children for months at a time, and sometimes fail to visit
Plaintiff Children for six
months or more. This failure jeopardizes the safety of Plaintiff
Children on an ongoing basis,
leaving them at risk of abuse, neglect or other maltreatment. When
visits to children in DHS
custody do occur, they are regularly made by inexperienced and
unqualified “case aides,” rather
than by DHS caseworkers.
Page 36
129. The routine placement of Plaintiff Children far from their home
communities has resulted in the DHS practice of assigning
“secondary” DHS caseworkers to
visit Plaintiff Children in the counties where they are currently
housed. However, due to
excessive workloads, “secondary” DHS caseworkers often fail to
visit or otherwise monitor and
supervise the Plaintiff Children assigned to them. Additionally,
“secondary” DHS caseworkers
routinely fail to share information or coordinate efforts with
“primary” DHS caseworkers, who
remain responsible for Plaintiff Children’s safety and well-being,
and for implementing plans to
seek and secure a permanent home out of state custody for Plaintiff
Children.
130. DHS routinely fails to furnish basic, accurate and current
information about
Plaintiff Children to the juvenile courts and to the attorneys who
represent Plaintiff Children,
including required timely notification of Plaintiff Children’s
placement moves.
131. DHS frequently fails to adequately screen and investigate
potential foster
parents and their homes before approving them for the placement of
children in DHS custody
and before putting Plaintiff Children in their homes. For example, a
recent report by the
Oklahoma Commission on Children and Youth documented that, of
sixteen foster homes in a
particular county, four homes – or 25% – had serious safety
issues and never should have been
approved for placement by DHS.
132. DHS policy requires all foster homes to be formally re-assessed
and relicensed
or approved on a yearly basis. This process is not consistently
followed, and DHS
regularly fails to complete these annual inspections. The pressure
to keep foster homes open,
due to the lack of placements for foster children, contributes to
the routine failure by DHS to
adequately review and re-license or approve homes to ensure their
safety.
Page 37
133. DHS fails to adequately investigate reports or suspicions of
abuse or
neglect in foster homes and facilities, which places Plaintiff
Children at serious risk of harm.
DHS caseworkers regularly ignore complaints by children in DHS
custody of abuse or neglect by
their foster parents or facility staff and obvious signs of abuse or
neglect in placements. DHS
also fails to close foster homes promptly – or close them at all
– where children in DHS custody
have been subjected to abuse or neglect. In those instances where
DHS does investigate
allegations of abuse or neglect in foster homes, due to the shortage
of foster homes, DHS
routinely keeps children in the foster homes pending results of the
investigation, even if there are
allegations of serious injury.
134. DHS routinely fails to adequately screen, inspect, approve and
certify the
homes of relatives (also called “kinship” homes) for foster
children. DHS policy allows children
in custody to be placed in kinship foster homes pending DHS approval
of the homes, but only
after criminal background checks and an initial home assessment are
completed. These basic
protections are routinely ignored. The initial assessments are
assigned to DHS caseworkers who
are overburdened with other responsibilities and onerous caseloads,
sometimes in excess of one
hundred children per worker. In violation of DHS policy, DHS often
fails to conduct the
required criminal background checks on all other adults residing in
the kinship home before
placing Plaintiff Children in the home.
135. DHS inspections of facilities which house foster children are
often cursory,
as DHS inspectors do not interview foster children who are living in
the facilities and, as a result,
often overlook dangerous and inappropriate conditions. Even where
violations are discovered
and reported at facilities, DHS does not ensure that they are timely
corrected, placing Plaintiff
Children at risk of harm.
Page 38
136. DHS often fails to adequately supervise and monitor the safety
and quality
of the homes, facilities and services provided by private agencies
under contract with DHS.
137. DHS routinely fails to make reasonable efforts to locate
children in DHS
custody who have run away from their placements in order to ensure
their safety and well-being.
This poor monitoring and oversight practice harms Plaintiff Children
and places them at
imminent risk of harm.
138. DHS denies adequate support to foster parents who take care of
Plaintiff
Children, by failing to provide adequate initial and ongoing foster
parent training and by failing
to provide foster parents with basic and necessary information about
the foster children who are
placed in their homes. Additionally, due to excessive workloads,
caseworkers are routinely
inaccessible to foster parents.
139. Foster parents also fear retaliation by DHS for advocating on
behalf of the
foster children for whom they care. DHS workers sometimes remove
Plaintiff Children from
foster homes as a response to foster parents who assert themselves
to get questions answered or
to access needed services. As a result, foster parents are often
wary of requesting help to obtain
for foster children the services to which they are entitled. These
practices harm Plaintiff
Children and place them at imminent risk of harm, and reduce the
number of appropriate foster
parents who might otherwise be willing to provide homes for
Plaintiff Children.
D. Additional Dangerous Failings by DHS Subject
1. DHS Fails to Provide Adequate Foster Care Maintenance Payments
for the Care of Plaintiff Children
140. Oklahoma receives federal funding to provide licensed foster
parents with
“foster care maintenance payments,” which are defined by DHS
policy as payments adequate to
Page 39
cover “the cost of (and the cost of providing) food, clothing,
shelter, daily supervisions, school
supplies, a child’s personal incidentals, liability insurance with
respect to a child, and reasonable
travel to the child’s home for visitation.” Oklahoma accepts
federal funding for foster care
maintenance payments, but fails to provide payments to caregivers of
foster children that cover
the reasonable actual cost of care under federal law.
141. The foster care maintenance payments in Oklahoma are not based
on a
methodology reflecting the actual and reasonable payments that cover
the cost of (and the cost of
providing) food, clothing, shelter, daily supervisions, school
supplies, a child’s personal
incidentals, liability insurance with respect to a child and
reasonable travel to the child’s home
for visitation.
142. The actual foster care maintenance payment rates in Oklahoma
fall far short
of the actual and reasonable costs required by federal law. For
example, DHS pays foster parents
a basic foster care rate of only $365 a month – less than $12 a
day – to raise a child up to six
years old. According to a national research study published in 2007
by the University of
Maryland, Children’s Rights and the National Foster Parent
Association, Oklahoma’s foster care
maintenance payments would need to be increased by over 50% before
they could begin to cover
the reasonable and actual costs of raising a child pursuant to
federal law.
143. DHS’s failure to provide adequate foster care maintenance
payments as
required by federal law directly contributes to the drastic shortage
in the number and array of
foster homes for Plaintiff Children in Oklahoma. DHS provides foster
parents with payments for
the direct and intended benefit of Plaintiff Children that are too
low to attract and retain qualified
foster parents, or to provide foster parents with adequate resources
such that Plaintiff Children
can receive basic necessities. As a result, DHS’s inadequate
foster care maintenance payments
Page 40
directly contribute to Plaintiff Children being routinely placed in
grossly inappropriate
emergency shelters, and other unsafe and inappropriate homes and
facilities.
44. Additionally, because the cost of caring for foster children
becomes more
expensive as children get older, adequate foster care maintenance
payments under federal law are
higher for older children than for infants and toddlers. However,
DHS has a policy, pattern,
custom and/or practice of failing to increase the basic rate for
foster care maintenance payments
as a function of age unless foster parents specifically request such
an increase. As a result, many
foster parents in Oklahoma who are raising teenagers receive grossly
inadequate foster
maintenance payments that are set at the already inadequate rate for
infants and toddlers.
2. DHS Fails to Plan for and Take Mandated Steps to Find
Permanent
145. DHS routinely fails to meet statutory timetables and other
requirements for
providing Plaintiff Children with specific services and steps to
ensure their prompt placement in
a permanent home outside of state custody, also called “permanency
planning” services. These
requirements include determining whether children can be safely and
promptly returned home
and, if DHS determines that is not appropriate, taking mandated
steps to place children with an
alternative permanent family, usually through adoption.
146. For example, DHS routinely fails to conduct timely required
“diligent
searches” for possible relatives who can care for Plaintiff
Children, as soon as they are brought
into state custody, in violation of DHS policy, federal law and
reasonable professional standards.
This DHS failure directly results in the placement of Plaintiff
Children with strangers, and the
loss of opportunities for Plaintiff Children to live with family
members while in foster care or
permanently out of state custody. This DHS failure also subjects
Plaintiff Children to the
emotional and psychological trauma of additional, unnecessary
placement moves, as DHS
Page 41
routinely pulls Plaintiff Children out of the homes of foster
parents with whom they have formed
relationships and places them in relative homes that DHS could
easily have identified earlier.
147. Federal and state law, as well as DHS policy, require that a
petition to
terminate parental rights (also called a “TPR” petition) must be
filed for children who have been
in state custody for fifteen of the last twenty-two months in order
to begin the process of making
them legally available for adoption, unless compelling reasons
against filing a TPR are
documented in the child’s case file. According to recent state
data, Oklahoma was in violation of
this requirement more than half the time. Even when parental rights
have been terminated for
children in DHS custody, DHS fails to take steps to move foster
children promptly and safely
towards adoption, forcing them to needlessly languish in state
custody.
148. DHS also fails to provide required services to foster children
aged sixteen
and older who cannot be returned home or adopted to help prepare
them to live on their own
when they are discharged from DHS custody at the age of eighteen,
also known as “independent
living services.” These services include job training, drivers
education courses, life skills
training and college preparation courses. Such services are
routinely not provided to eligible
Plaintiff Children. Additionally, required “independent living
plans” are rarely provided for
eligible foster youth and, when they are provided, are grossly
inadequate. As a result, older
foster children routinely leave DHS custody without the basic life
skills and training necessary to
live on their own, and many face unemployment, long term public
assistance, incarceration or
homelessness.
3. DHS Fails to Arrange Mental Health Services for Plaintiff
Children
149. Children entering foster care often have experienced
significant trauma,
resulting in physical, emotional or behavioral issues that require
mental health treatment.
Page 42
Plaintiff Children are routinely prescribed psychotropic medications
to “manage” their
behaviors, yet DHS fails to arrange for mental health treatment and
therapy to address Plaintiff
Children’s mental health needs. This DHS failure harms Plaintiff
Children and places them at
imminent risk of harm.
4. Plaintiff Children Are Denied Adequate and Effective
150. Under Oklahoma law, an attorney must be appointed to represent
every
child in a proceeding to determine if the child is deprived, and
every child who has been subject
to abuse or neglect. These attorneys are required to provide their
clients with adequate and
effective legal representation and zealous advocacy in order to
ensure their safety and well-being
and to promote their best interests, throughout their experience in
the juvenile courts.
151. Among other things, attorneys representing Plaintiff Children
in the
juvenile courts must investigate cases and meet with their client
children outside of court prior to
court proceedings. Published national standards require that
attorneys representing abused and
neglected children have caseloads of no more than one hundred
individual children per attorney,
to make it possible for them to perform these and other critical
functions in providing legal
representation to foster children.
152. However, attorneys charged with representing abused and
neglected
children in Oklahoma routinely carry unmanageably high caseloads.
For example, attorneys
representing Plaintiff Children in Oklahoma City have caseloads in
excess of 1,300 children, and
attorneys representing Plaintiff Children in juvenile court in Tulsa
have caseloads in excess of
500 children.
153. As a result of the excessively high workloads of attorneys
assigned to
represent Plaintiff Children, these lawyers are routinely unable to
consult with their clients
Page 43
before court appearances and are unable to provide adequate or
effective counsel or zealous
advocacy. DHS regularly fails to inform attorneys of the location of
the Plaintiff Children they
represent, a problem compounded by the frequent multiple moves to
which foster children are
subjected while in DHS custody. DHS also frequently fails to take
steps to facilitate meetings
between Plaintiff Children and their attorneys.
154. In 2006, due to pressure from attorneys, DHS contracted with
the
American Bar Association (“ABA”) to conduct a study of the
quality of legal representation for
children in the juvenile courts. The ABA conducted the study and
then circulated a draft report
in 2007, which stated: “The quality of legal representation for
children, parents and the State is
inadequate . . . [T]here are not enough attorneys to do the work.
Current caseloads leave
attorneys in an untenable position; they are painfully aware of what
is required to properly serve
their clients and want to provide the highest quality of legal
representation possible – but given
unmanageably high caseloads are unable to perform fundamental
responsibilities.” The BA
draft report noted that, due to the sheer volume of their caseloads,
these attorneys were put in
positions where they were violating their ethical responsibilities
to the children they represent.
155. Plaintiff Children are routinely denied adequate and effective
legal
representation in the juvenile courts. As a result, Plaintiff
Children are also denied an important
safeguard to identify potential threats to their safety and
well-being while in DHS custody,
placing them at risk of imminent harm.
5. Breach of the Oklahoma State Plan Contracts Harms Plaintiff Children
156. The federal government has approved the State Plans submitted
by
Oklahoma in order to receive federal financial assistance under
Titles IV-B and IV-E of the
Social Security Act, to help fund the state’s child welfare,
foster care and adoption programs.
Page
44
These State Plans are contracts into which the State of Oklahoma
enters for the express and
direct benefit of Plaintiff Children, who are direct and intended
third-party beneficiaries of these
contracts. Defendants are directly responsible for fulfilling the
obligations undertaken by
Oklahoma when it entered into these State Plan contracts, including
but not limited to the
obligation to administer the programs in accordance with specific
relevant state statutes,
regulations and policies and all applicable federal statutes,
regulations and other official
issuances of the United States Department of Health and Human
Services.
157. Defendants, who directly and indirectly control and are
responsible for the
policies and practices of DHS, have breached their obligations to
Plaintiff Children under these
State Plan contracts, and Plaintiff Children have been harmed and
placed at imminent risk of
harm as a result of this breach.
VII. Additional Factual Allegations Concerning Named Plaintiffs
D.G.
158. DHS has victimized D.G. through unsafe placements and numerous
moves, the failure to provide stable and safe care from a consistent
adult caregiver, the failure to
provide services necessary to facilitate his prompt and safe
reunification with his biological
parents, and the failure to seek and secure another permanent home
for D.G. out of state custody
through adoption. These harms and D.G.’s continued instability and
risk of harm are a direct
result of DHS’s drastic placement shortage, its failure to find an
appropriate placement for D.G.
and its failure to provide adequate monitoring and oversight over
its placements and over his
care.
159. D.G. entered DHS custody in Oklahoma County in September of
2007,
when he was only seven days old, due to his mother’s chronic drug
abuse. With no foster homes
Page 45
available, DHS first placed D.G. in the poorly supervised baby Annex
of the Pauline Mayer
Emergency Shelter in Oklahoma City. In violation of DHS policy and
reasonable professional
standards limiting shelter stays for children under five years old
to a maximum of twenty-four
hours, DHS kept D.G. languishing in the shelter for at least
twenty-two days.
160. In September of 2007, due to inadequate supervision by DHS at
the
overcowded Mayer Emergency Shelter, a DHS worker carrying D.G. and
another infant at the
same time dropped D.G. – who was then less than a month old –
and he fell and struck his head
on the floor. DHS did not take D.G. to the hospital until the next
day, where he was diagnosed
with a fractured skull.
161. After D.G.’s stay at the hospital, DHS placed D.G. in an
“emergency
foster home” for seventeen days. DHS then moved D.G., at the age
of two months, to another
temporary foster home, where he currently lives, likely to be moved
yet again.
162. D.G. has received dangerously poor monitoring and oversight
from DHS
during his time in state custody. With no opportunity to form a
relationship with a consistent and
safe adult caregiver, D.G. waits for a stable and permanent
placement as he faces more and more
moves in foster care. In addition to its failure to keep D.G. safe
while in state custody, DHS
failed to provide the services necessary to facilitate D.G.’s
prompt and safe reunification with his
biological parents. Although the parental rights of D.G.’s parents
have now been terminated,
making him legally available for adoption, DHS has failed to seek
and secure another permanent
home for D.G. through adoption, so he can leave DHS custody.
163. DHS’s policies and practices have caused D.G. irreparable
harm and continue to subject D.G. to the imminent risk of irreparable harm.
DHS has violated D.G.’s
constitutional and statutory rights by: failing to protect him from
unnecessary harm and failing
Page 46
to keep him reasonably safe from harm while in government custody;
failing to provide him with
a living environment that protects his physical, mental and
emotional safety and well-being;
failing to provide him with services necessary to prevent him from
deteriorating or being harmed
physically, psychologically or emotionally while in government
custody, including the right to
safe and secure foster placements, appropriate monitoring and
supervision; placing him in an
emergency shelter or other emergency, temporary placements that are
contrary to his individual
needs and for extended periods, in violation of any reasonable
professional judgment; failing to
provide him with appropriate planning and services directed toward
ensuring that he can leave
foster care and grow up in a permanent family; failing to provide
him with treatment and care
consistent with the purpose of the assumption of custody by DHS;
failing to provide him care,
treatment, and services, determined and provided through the
exercise of accepted, reasonable
professional judgment; failing to provide adequate instruction,
supervision, control and discipline
of his DHS caseworkers; failing to provide adequate monitoring of
his current status and needs;
failing to place him in the least restrictive placement according to
his needs; failing to develop
and implement timely written case plans that include mandated
elements; failing to provide
appropriate, adequate and timely investigations into suspected abuse
or neglect while he was in
DHS custody; failing to adequately screen foster homes prior to
placing him in such homes; and
failing to provide him with foster placements that are receiving
adequate foster care maintenance
payments so that they have the capacity to provide for his essential
needs and services.
C.S.
164. DHS has victimized C.S. through unsafe placements and numerous
moves,
the failure to provide stable and safe care from a consistent adult
caregiver, the failure to provide
required visits from her DHS caseworkers, the failure to arrange
regular contact with her
Page 47
siblings, the failure to provide required medical treatment, and the
failure to provide services
necessary to facilitate her prompt and safe reunification with her
biological mother or, if DHS
determines that is not appropriate, the failure to seek and secure
another permanent home for C.S. out of state custody through adoption. These harms and C.S.’s
continued instability and risk
of harm are a direct result of DHS’s drastic placement shortage,
its failure to find an appropriate
placement for C.S. and its failure to provide adequate monitoring
and oversight over its
placements and over her care.
165. C.S. entered DHS custody in Tulsa County in February of 2007,
when she
was only a few days old, due to her mother’s chronic drug abuse.
In her first few months in
custody, DHS moved C.S. through an emergency shelter, an
“emergency foster home” and three
foster homes. DHS then placed C.S. with a relative in an unsafe and
inadequately monitored
kinship foster home, where she was thrown against a wall, fracturing
her skull, and where she
was likely subjected to Shaken Baby Syndrome. After C.S. was removed
from the kinship foster
home and hospitalized for her injuries, with no foster homes
available, DHS placed the then five month-
old C.S. in the overcrowded and poorly supervised “Little House”
for babies at the Laura
Dester Emergency Shelter in Tulsa, a grossly inappropriate placement
for an infant.
166. DHS then moved C.S. through three temporary foster homes over
the next
two months, after which DHS placed her with her biological mother in
a group facility in Tulsa,
where C.S. remained in DHS custody. Due to DHS’s failure to
adequately monitor this
placement, C.S. was severely neglected. Her safety and care were so
poorly supervised that she
was removed and hospitalized for severe dehydration and subsequently
suffered from seizures.
167. After her hospitalization, DHS moved C.S. through two more
foster
homes over the next few months, during which time she suffered from
a severe, untreated and
Page 48
worsening respiratory tract infection. DHS failed to provide basic
monitoring or supervision of
C.S.’s health and safety and, when DHS removed C.S. from the
second foster home, she had
open sores on her legs, was dehydrated, was oozing puss and phlegm
out of her mouth and nose,
and was struggling to breathe.
168. When DHS placed C.S. in her next temporary foster home – her
sixteenth
placement in eleven months in DHS custody – despite C.S.’s
clearly critical medical condition,
DHS failed to provide the foster parents with any information about
C.S.’s background, prior
harms or current medical condition or needs. The foster mother
immediately took C.S. to a
doctor, who diagnosed C.S. with a “failure to thrive” and
Respiratory Syncytial Virus (“RSV”), a
highly contagious but easily treatable respiratory tract infection
that can be fatal if untreated for
children under three years old, and prescribed her antibiotics. On a
later visit to the doctor, the
foster mother also learned that C.S. had serious allergies to pets,
and her allergies were inflamed
because DHS had placed her in a home that had both cats and dogs. As
a result, DHS moved
C.S. to another temporary foster home where she currently resides,
likely to be moved yet again.
169. C.S. has received dangerously poor monitoring and oversight
from DHS
during her time in state custody. After suffering from severe abuse
in DHS custody, and
numerous inappropriate and unnecessary placement moves, C.S. is an
eleven-month-
Page 49
another permanent home for C.S. through adoption, so she can leave
DHS custody. As a result,
at any moment, C.S. is at risk of more moves, more instability and
more harm from inappropriate
placements.
170. DHS’s policies and practices have caused C.S. irreparable
harm and
continue to subject C.S. to the imminent risk of irreparable harm.
DHS has violated C.S.’s
constitutional and statutory rights by: failing to protect her from
unnecessary harm and failing to
keep her reasonably safe from harm while in government custody;
failing to provide her with a
living environment that protects her physical, mental and emotional
safety and well-being;
failing to provide her with services necessary to prevent her from
deteriorating or being harmed
physically, psychologically or emotionally while in government
custody, including the right to
safe and secure foster placements, appropriate monitoring and
supervision; placing her in
emergency shelters or other emergency, temporary placements that are
contrary to her individual
needs and for extended periods, in violation of any reasonable
professional judgment; failing to
provide her with appropriate planning and services directed toward
ensuring that she can leave
foster care and grow up in a permanent family; failing to provide
her with treatment and care
consistent with the purpose of the assumption of custody by DHS;
failing to provide her care,
treatment, and services, determined and provided through the
exercise of accepted, reasonable
professional judgment; failing to provide adequate instruction,
supervision, control and discipline
of her DHS caseworkers; failing to provide adequate monitoring of
her current status and needs;
failing to place her in the least restrictive placement according to
her needs; failing to develop
and implement timely written case plans that include mandated
elements; failing to provide
appropriate, adequate and timely investigations into suspected abuse
or neglect while she was in
DHS custody; failing to adequately screen foster homes prior to
placing her in such homes;
Page 50
failing to preserve family connections and to facilitate visits with
her siblings; and failing to
provide her with foster placements that are receiving adequate
foster care maintenance payments
so that they have the capacity to provide for her essential needs
and services.
J.B.
171. DHS has victimized J.B. through unsafe placements and numerous
moves,
the failure to provide stable and safe care from a consistent adult
caregiver, the failure to provide
required visits from his DHS caseworkers, the failure to arrange
regular contact with his siblings,
and the failure to provide services necessary to facilitate his
prompt and safe reunification with
his biological mother or, if DHS determines that is not appropriate,
the failure to seek and secure
another permanent home for J.B. out of state custody through
adoption. These harms and J.B.’s
continued instability and risk of harm are a direct result of
DHS’s drastic placement shortage, its
failure to find an appropriate placement for J.B. and its failure to
provide adequate monitoring
and oversight over its placements and over his care.
172. J.B. entered DHS custody in Oklahoma County in October of 2006,
when
he was only two days old, due to neglect by his mother and sexual
abuse perpetrated on his
siblings by a male living with his mother. After placing J.B. in a
foster home for a few months,
DHS moved J.B. and three of his siblings back into the home of their
biological mother on a trial
home reunification, although DHS had not provided J.B.’s mother
with the services necessary to
enable her to care for her children. DHS retained custody of J.B.
and was required to provide
him with supervision, monitoring and services to ensure his safety
during the entire trial home
reunification, but failed to do so. J.B.’s DHS caseworker failed
to make required visits to J.B. in
his mother’s home. During the trial home reunification, J.B.’s
mother continued to use drugs,
and she continued to allow the man who had sexually abused J.B.’s
siblings to live in her house.
Page 51
In October of 2007, DHS finally removed J.B. from his mother’s
home due to neglect and the
dangerous conditions in her home.
173. With no foster homes available, DHS placed the then
one-year-old J.B. in
the overcrowded and poorly supervised baby Annex of the Pauline
Mayer Emergency Shelter in
Oklahoma City. DHS kept J.B. in the Mayer Emergency Shelter for over
thirty consecutive
days, until late November of 2007, in violation of DHS policy and
reasonable professional
standards limiting shelter stays for children under five years old
to a maximum of twenty-four
hours.
174. During DHS’s placement of J.B. in the Mayer Emergency
Shelter, J.B.
was poorly supervised and unmonitored while in a bath, and he
suffered severe burns. After the
incident occurred, DHS failed to immediately report the suspected
abuse or neglect. J.B. was
taken to the hospital where a physician diagnosed J.B. with first-
and second-degree burns on
both of his feet and reported suspected abuse. The second-degree
burns on J.B.’s left foot were
so severe that they resulted in the complete loss of his skin from
his foot to his toes. DHS then
moved J.B. from the shelter to a temporary foster home where he
currently lives while his burns
heal, after which, DHS plans to move him yet again.
175. J.B. has received dangerously poor monitoring and oversight
from DHS
during his time in state custody. After suffering from severe abuse
and numerous placement
moves in DHS custody, J.B. is a sixteen-month-
Page 52
that is not appropriate, to seek and secure another permanent home
for J.B. through adoption, so
he can leave DHS custody. Instead, J.B. waits indefinitely for a
long term placement, at risk of
being moved yet again.
176. DHS’s policies and practices have caused J.B. irreparable
harm and continue to subject J.B. to the imminent risk of irreparable harm.
DHS has violated J.B.’s
constitutional and statutory rights by: failing to protect him from
unnecessary harm and failing
to keep him reasonably safe from harm while in government custody;
failing to provide him with
a living environment that protects his physical, mental and
emotional safety and well-being;
failing to provide him with services necessary to prevent him from
deteriorating or being harmed
physically, psychologically or emotionally while in government
custody, including the right to
safe and secure foster placements, appropriate monitoring and
supervision; placing him in
emergency shelters or other emergency, temporary placements that are
contrary to his individual
needs and for extended periods, in violation of any reasonable
professional judgment; failing to
provide him with appropriate planning and services directed toward
ensuring that he can leave
foster care and grow up in a permanent family; failing to provide
him with treatment and care
consistent with the purpose of the assumption of custody by DHS;
keeping him in DHS custody
longer than is necessary to accomplish the purposes of taking him
into DHS custody; failing to
provide him care, treatment, and services, determined and provided
through the exercise of
accepted, reasonable professional judgment; failing to provide
adequate instruction, supervision,
control and discipline of his DHS caseworkers; failing to provide
adequate monitoring of his
current status and needs; failing to place him in the least
restrictive placement according to his
needs; failing to develop and implement timely written case plans
that include mandated
elements; failing to provide appropriate, adequate and timely
investigations into suspected abuse
Page 53
or neglect while he was in DHS custody; failing to adequately screen
foster homes prior to
placing him in such homes; subjecting him to state-created dangers
by placing him on
unsupervised visits or trial home reunification with family members
without taking reasonable
steps and providing necessary supervision to ensure his safety;
failing to preserve family connections and to facilitate
visits with his siblings; and failing to provide him with foster
placements that are receiving adequate foster care maintenance
payments so that they have the
capacity to provide for his essential needs and services.
A.P.
177. DHS has victimized A.P. through unsafe placements and numerous
moves, the failure to provide stable and safe care from a consistent
adult caregiver, the failure to
provide required visits from her DHS caseworkers, and the failure to
provide services necessary
to facilitate her prompt and safe reunification with her biological
parents or, if DHS determines
that is not appropriate, the failure to seek and secure another
permanent home for A.P. out of
state custody through adoption. These harms and A.P.’s continued
instability and risk of harm
are a direct result of DHS’s drastic placement shortage, its failure
to find an appropriate
placement for A.P. and its failure to provide adequate monitoring and
oversight over its
placements and over her care.
178. A.P. entered DHS custody in Rogers County in July of 2006, when
she
was two years old, along with her four-year-old sister H.P., due to
neglect and their mother’s
mental health problems. DHS first placed A.P. and H.P temporarily in
an “emergency foster
home” for two days before moving them to another foster home for a
month.
179. In October of 2006, DHS directed A.P.’s mother to undergo a
psychiatric
evaluation, which found that she was in a severe state of mental
health crisis, and in immediate
Page 54
need of services to stabilize her condition and put her on track to
possibly resume care of her
daughters. However, DHS never communicated the findings of the
evaluation to A.P.’s mother
and failed to implement the recommendations or provide any services.
As a result, A.P.’s
mother’s mental health condition has significantly deteriorated, and
A.P. has been denied the
opportunity for a possible safe reunification with her mother.
180. Instead, DHS removed A.P. and H.P. from their foster home and
placed
them with their biological father on a trial home reunification,
although DHS had not provided
A.P.’s father with the services necessary to enable him to care for
his children. DHS retained
custody of A.P. and H.P. and was required to provide them with
supervision, monitoring and
services to ensure their safety during the entire trial home
reunification period, but failed to do
so. A.P.’s DHS caseworker failed to make the required visits to her
in her father’s home. As
part of this placement arrangement, A.P.’s father was not to allow
the girls to have any contact
with their mother. However, their mother was, openly, still living in
the home, and her untreated
and deteriorating mental health condition placed A.P. at immediate
risk of harm. After A.P. and H.P. had lived in their father’s home for seven months, DHS finally
removed them from the trial
home reunification.
181. DHS then placed A.P. and H.P. together in a kinship home in May
of
2007. Again, DHS failed to supervise and monitor the safety of the
placement and the children in the home. In violation of DHS policy and reasonable professional
standards, DHS failed to
properly perform the required background checks prior to placing A.P.
in the home. It was only
after A.P. had been living in the home that DHS discovered a prior
confirmed child abuse
allegation against the kinship foster parent, rendering the home
unsafe. In addition, H.P. started
exhibiting highly inappropriate sexual behaviors toward A.P. in this
home, consistent with her
Page 55
having been recently sexually abused, and began to sexually abuse A.P.
and other children in the
home. In June of 2007, DHS moved A.P. and H.P. – together – into
another foster home, where H.P. continued to sexually abuse A.P. It was not until September of
2007 that DHS finally
separated A.P. from H.P. and moved her to another temporary foster
home, where she currently
lives, likely to be moved yet again.
182. A.P. has received dangerously poor monitoring and oversight from
DHS
during her time in state custody. During A.P.’s eighteen months in
DHS custody, DHS has
already changed her assigned DHS caseworker five times, due to the
excessive turnover in the
DHS workforce. DHS has also failed to ensure that A.P. has received
required visits from her
caseworkers. DHS has shuffled her among several unsafe placements, and
failed to provide the
services necessary to facilitate A.P.’s prompt and safe
reunification with her biological parents
or, if DHS determines that is not appropriate, to seek and secure
another permanent home for A.P. through adoption, so she can leave DHS custody. Instead, she
waits indefinitely for a long
term placement, at risk of being moved yet again.
183. DHS’s policies and practices have caused A.P. irreparable harm
and
continue to subject A.P. to the imminent risk of irreparable harm. DHS
has violated A.P.’s
constitutional and statutory rights by: failing to protect her from
unnecessary harm and failing to
keep her reasonably safe from harm while in government custody;
failing to provide her with a
living environment that protects her physical, mental and emotional
safety and well-being;
failing to provide her with services necessary to prevent her from
deteriorating or being harmed
physically, psychologically or emotionally while in government
custody, including the right to
safe and secure foster placements, appropriate monitoring and
supervision; placing her in
emergency shelters or other emergency, temporary placements that are
contrary to her individual
Page 56
needs and for extended periods, in violation of any reasonable
professional judgment; failing to
provide her with appropriate planning and services directed toward
ensuring that she can leave
foster care and grow up in a permanent family; failing to provide her
with treatment and care
consistent with the purpose of the assumption of custody by DHS;
keeping her in DHS custody
longer than is necessary to accomplish the purposes of taking her into
DHS custody; failing to
provide her care, treatment, and services, determined and provided
through the exercise of
accepted, reasonable professional judgment; failing to provide
adequate instruction, supervision,
control and discipline of her DHS caseworkers; failing to provide
adequate monitoring of her
current status and needs; failing to develop and implement timely
written case plans that include
mandated elements; failing to provide appropriate, adequate and timely
investigations into
suspected abuse or neglect while she was in DHS custody; failing to
adequately screen foster
homes prior to placing her in such homes; subjecting her to
state-created dangers by placing her
on unsupervised visits or trial home reunification with family members
without taking
reasonable steps and providing necessary supervision to ensure her
safety; and failing to provide
her with foster placements that are receiving adequate foster care
maintenance payments so that
they have the capacity to provide for her essential needs and
services.
J.A.
184. DHS has victimized J.A. through unsafe placements and numerous
moves,
the failure to provide stable and safe care from a consistent adult
caregiver, the failure to arrange
regular contact with his siblings, and the failure to provide services
necessary to facilitate his
prompt and safe reunification with his biological parents or, if DHS
determines that is not
appropriate, the failure to seek and secure another permanent home for
J.A. out of state custody
through adoption. These harms and J.A.’s continued instability and
risk of harm are the direct
Page 57
result of DHS’s drastic placement shortage, its failure to find an
appropriate placement for J.A.
and its failure to provide adequate monitoring and oversight over its
placements and over his
care.
185. J.A. entered DHS custody in Oklahoma County in December of 2006,
when he was four years old, due to neglect and his parents’ chronic
substance abuse problems.
In 2002, after J.A. and his mother both tested positive for drugs at
J.A.’a birth, DHS requested
that J.A. be placed in state custody to ensure his safety. However,
DHS was unable to locate J.A.
and, instead, placed him on child protective services alert. It was
only in 2006, after J.A.’s
mother gave birth to another drug-addicted baby, that DHS brought J.A.
into custody. With no
foster homes available, DHS first placed J.A. in the overcrowded and
poorly supervised baby
Annex of the Pauline Mayer Emergency Shelter for a week, in violation
of DHS policy and
reasonable professional standards limiting shelter stays for children
under five years old to a
maximum of twenty-four hours.
186. With still no foster homes available, DHS moved J.A. to an
“emergency
foster home” for over a month and then placed him temporarily in a
kinship foster home with his
uncle, without making any effort to determine if his uncle’s home
could be a long-term
placement for J.A. After J.A. had spent six months in the kinship home
and developed a
relationship with his uncle’s family, DHS moved him abruptly to an
emergency shelter in Creek
County when his uncle moved out of state with his family. During the
more than six weeks that
DHS kept J.A. in this emergency shelter, J.A.’s behavior became more
disruptive.
187. Still lacking placement options, DHS moved J.A. to yet another
emergency shelter for five days, this time in Cleveland County, and
then moved him yet again to
Page
58
another emergency shelter for six weeks, this time in Pittsburgh
County. By this time, DHS had
kept J.A. in three different emergency shelters for ninety consecutive
days.
188. DHS then moved J.A. to a foster home for approximately one month,
after
which DHS moved J.A. to an “emergency foster home” for one day and
then moved him again,
this time to a residential treatment facility in Cleveland County. DHS
kept J.A. in this
institutional facility for over a week, after which he was placed in a
temporary foster home in
Canadian County, where he currently lives, likely to be moved yet
again.
189. J.A. has received dangerously poor monitoring and oversight from
DHS
during his time in state custody. After a year in DHS custody, J.A.
has been shuffled through
nine different placements, including numerous institutional
facilities, without adequate stability,
treatment or care from DHS. DHS has failed to arrange for J.A. to have
any visits with his
siblings in order to maintain critical family relationships. In
addition, DHS has failed to provide
the services necessary to facilitate J.A.’s prompt and safe
reunification with is biological
parents or, if DHS determines that is not appropriate, to seek and
secure another permanent home
for JA. through adoption, so he can leave DHS custody. Instead, J.A.
waits indefinitely for a
long term placement, at risk of being moved yet again.
190. DHS’s policies and practices have caused J.A. irreparable harm
and
continue to subject J.A. to the imminent risk of irreparable harm. DHS
has violated J.A.’s
constitutional and statutory rights by: failing to protect him from
unnecessary harm and failing
to keep him reasonably safe from harm while in government custody;
failing to provide him with
a living environment that protects his physical, mental and emotional
safety and well-being; failing to provide him with services necessary to prevent him from
deteriorating or being harmed
physically, psychologically or emotionally while in government
custody, including the right to
Page 59
safe and secure foster placements, appropriate monitoring and
supervision; placing him in
emergency shelters or other emergency, temporary placements that are
contrary to his individual
needs and for extended periods, in violation of any reasonable
professional judgment; failing to
provide him with appropriate planning and services directed toward
ensuring that he can leave
foster care and grow up in a permanent family; failing to provide him
with treatment and care
consistent with the purpose of the assumption of custody by DHS;
keeping him in DHS custody
longer than is necessary to accomplish the purposes of taking him into
DHS custody; failing to
provide him care, treatment, and services, determined and provided
through the exercise of
accepted, reasonable professional judgment; failing to provide
adequate instruction, supervision,
control and discipline of his DHS caseworkers; failing to provide
adequate monitoring of his
current status and needs; failing to place him in the least
restrictive placement according to his
needs; failing to develop and implement timely written case plans that
include mandated
elements; failing to adequately screen foster homes prior to placing
him in such homes; failing to
preserve family connections and to facilitate visits with his
siblings; and failing to provide him
with foster placements that are receiving adequate foster care
maintenance payments so that they
have the capacity to provide for his essential needs and services.
J.P.
191. DHS has victimized J.P. through unsafe placements and numerous
moves,
the failure to provide stable and safe care from a consistent adult
caregiver, the failure to provide
required visits from his DHS caseworkers, the failure to arrange
regular contact with his siblings,
the failure to arrange adequate and basic educational opportunities,
the failure to arrange
consistent and appropriate mental health services, and the failure to
provide services necessary to
facilitate his prompt and safe reunification with his biological
parents or, if DHS determines that
Page 60
is not appropriate, the failure to seek and secure another permanent
home for J.P. out of state
custody through adoption. These harms and J.P.’s continued
instability and risk of harm are a
direct result of DHS’s drastic placement shortage, its failure to
find an appropriate placement for
J.P. and its failure to provide adequate monitoring and oversight over
its placements and over his
care.
192. J.P. entered DHS custody in Oklahoma County in May of 2006, when
he
was six years old, due to physical abuse, exposure to domestic
violence and lack of supervision
by his aunt, with whom he and his two brothers had been living since
his mother was
incarcerated. With no foster homes available, DHS first placed J.P. in
the overcrowded and
poorly supervised Pauline Mayer Emergency Shelter in Oklahoma City for
ten days. DHS then
moved J.P. through three temporary foster homes in six months.
193. In November of 2006, DHS placed J.P. in a foster home where he
was
physically abused by his foster mother for almost a year. During this
time, J.P. did not receive required visits from his DHS caseworkers to monitor his safety. In May
of 2007, although J.P.
told his DHS caseworker that his foster mother and her teenage
daughter regularly pinned his
arms behind his back and beat him, DHS failed to adequately
investigate J.P.’s allegation of
abuse and kept him in this unsafe home. It was not until October of
2007, when J.P. was brought
to the hospital with bruises all over his body caused by his foster
mother whipping him with a
belt, that DHS finally removed him from this home.
194. After J.P.’s stay at the hospital, DHS placed him in a respite
foster home
for five days before placing him in another temporary foster home,
where he currently lives,
likely to be moved yet again.
Page 61
195. J.P. has received dangerously poor monitoring and oversight from
DHS
during his time in state custody. After a year and a half in DHS
custody, J.P. has suffered from
abuse and has been shuffled through eight different placements,
without adequate stability,
treatment or care from DHS. DHS has failed to arrange for J.P. to have
regular visits with his
brothers, who are also in DHS custody, in order to maintain critical
family relationships.
Although J.P. currently receives multiple psychotropic medications,
DHS has failed to arrange
consistent and appropriate mental health services for J.P. to address
the emotional and
psychological trauma he has suffered and continues to suffer in DHS
custody.
196. DHS has also failed to arrange adequate and basic educational
opportunities for J.P. during his time in DHS custody. DHS has failed
to ensure that J.P.’s
educational records follow his numerous placement moves. DHS has
caused J.P. to change
schools numerous times, to miss an unnecessary amount of school, and
to fall behind in school,
without any plan or services to give him the educational supports he
needs.
197. DHS has failed to provide the services necessary to facilitate
J.P.’s prompt
and safe reunification with his biological parents or, if DHS
determines that is not appropriate, to
seek and secure another permanent home for J.P. through adoption, so
he can leave DHS
custody. Instead, J.P. waits indefinitely for a long term placement,
at risk of being moved yet
again.
198. DHS’s policies and practices have caused J.P. irreparable harm
and
continue to subject J.P. to the imminent risk of irreparable harm. DHS
has violated J.P.’s
constitutional and statutory rights by: failing to protect him from
unnecessary harm and failing
to keep him reasonably safe from harm while in government custody;
failing to provide him with
a living environment that protects his physical, mental and emotional
safety and well-being;
Page 62
failing to provide him with services necessary to prevent him from
deteriorating or being harmed
physically, psychologically or emotionally while in government
custody, including the right to
safe and secure foster placements, appropriate monitoring and
supervision; placing him in
emergency shelters or other emergency, temporary placements that are
contrary to his individual
needs and for extended periods, in violation of DHS policy and any
reasonable professional
judgment; failing to provide him with appropriate planning and
services directed toward ensuring
that he can leave foster care and grow up in a permanent family;
failing to provide him with
treatment and care consistent with the purpose of the assumption of
custody by DHS; keeping
him in DHS custody longer than is necessary to accomplish the purposes
of taking him into DHS
custody; failing to provide him care, treatment and services,
determined and provided through
the exercise of accepted, reasonable professional judgment; failing to
provide adequate
instruction, supervision, control and discipline of his DHS
caseworkers; failing to provide
adequate monitoring of his current status and needs; failing to place
him in the least restrictive
placement according to his needs; failing to develop and implement
timely written case plans
that include mandated elements; failing to provide appropriate,
adequate and timely
investigations into suspected abuse or neglect while he was in DHS
custody; failing to preserve
family connections and to facilitate visits with his siblings; failing
to arrange adequate and basic
educational opportunities; failing to adequately screen foster homes
prior to placing him in such
homes; and failing to provide him with foster placements that are
receiving adequate foster care
maintenance payments so that they have the capacity to provide for his
essential needs and
services.
Page 63
R.J.
199. DHS has victimized R.J. through unafe placements and numerous
moves,
the failure to provide stable and safe care from a consistent adult
caregiver, the failure to provide
required visits from his DHS caseworkers, the failure to arrange
regular contact with his siblings,
the failure to arrange adequate and basic educational opportunities,
the failure to arrange
consistent and appropriate mental health services, the failure to
provide services necessary to
facilitate his prompt and safe reunification with his biological
mother, and the failure to seek and
secure another permanent home for R.J. out of state custody through
adoption. These harms and
R.J.’s continued instability and risk of harm are a direct result of
DHS’s drastic placement
shortage, its failure to find an appropriate placement for R.J. and
its failure to provide adequate
monitoring and oversight over its placements and over his care.
200. R.J. entered DHS custody in Oklahoma County in October of 1999,
when
he was three years old, due to neglect and sexual abuse perpetrated on
R.J.’s sisters by his
mother’s boyfriends. With no foster homes available, DHS first
placed R.J. in the overcrowded
and poorly supervised Pauline Mayer Emergency Shelter. DHS then moved
him through two
“emergency foster homes” in less than a month, followed by a
placement in a foster home for
one day, after which DHS moved R.J. yet again.
201. Between 2000 and 2002, DHS shuffled R.J. through another five
foster
homes as his behavior became predictably more difficult due to the
constant moves and DHS’s
poor oversight.
202. In 2002, DHS placed R.J. and his siblings back in the home of his
biological mother on a trial home reunification, although DHS had not
provided R.J.’s mother
with the services necessary to enable her to care for her children.
DHS retained custody of R.J.
Page 64
and was required to provide him with supervision, monitoring and
services to ensure his safety
during the entire trial home reunification period, but failed to do
so. R.J.’s DHS caseworker
203. Upon re-entering DHS custody, this time in Tulsa County, DHS placed
the
then eight-year-old R.J. in the Laura Dester Emergency Shelter for two
months because of the
drastic shortage of foster homes. DHS then moved R.J. to a temporary
foster home for several
months, after which he was again returned to the Laura Dester Emergency
Shelter.
204. In May of 2005, DHS placed R.J. and one of his siblings in an
unsafe,
poorly supervised and inadequately monitored foster home in Wagoner
County. R.J. lived in this
home for over eighteen months and, during this time, suffered repeated
physical abuse as his
foster mother regularly beat him with a switch. In early 2006, DHS
finally removed R.J. from
this abusive foster home. However, with no foster homes available, DHS
placed him in an
emergency shelter in Cherokee County for about one month until, due to
overcrowding in that
shelter, DHS moved him to another emergency shelter in Okmulgee County.
205. DHS then moved R.J. into a temporary foster home in Tulsa County
for
two weeks before placing him back in the Laura Dester Emergency Shelter
for three weeks.
DHS moved R.J. to another temporary foster home for six weeks, after
which DHS placed him in
a group home in May of 2007, where he now resides.
Page 65
206. R.J.’s current group home placement is unsafe, poorly monitored,
and fails
to meet R.J.’s needs. It is located in an old motel near Interstate
I-44, in walking distance of
several seedy bars, strip clubs and truck stops. The only immediate
outdoor space where the
resident children can play is the cement parking lot outside the group
home. Foster children of
ages five through eighteen are housed together in this home without age
or developmentally
appropriate programs or treatment. Supervision in the home is so poor,
and the conditions in the
home so unsanitary and unsafe, that children placed in this home
frequently run away from the
home for their own safety.
207. R.J. is currently separated from all of his six siblings. R.J.’s
brothers J.J.J. (eleven years old), E.H. (ten years old), and J.J. (eight years
old) and are in foster care in
DHS custody and have been adjudicated deprived. R.J.’s three brothers
have been moved by
DHS through 19, 11 and 17 placements, respectively. R.J. also has three
sisters who are no
longer in DHS custody. DHS has failed to arrange for R.J. to have
regular contact with his
siblings and the opportunity to maintain critical family relationships
while in DHS custody.
208. R.J. has received dangerously poor monitoring and oversight from
DHS
during his time in state custody. While in custody, R.J. has suffered
from abuse and has been
shuffled through more than twenty different placements, including six
stays at grossly
inappropriate emergency shelters, without adequate stability, treatment
or care from DHS. Although R.J. currently receives
multiple psychotropic medications, DHS has failed to arrange
consistent and appropriate mental health services for R.J. to address the
emotional and
psychological trauma he has suffered and continues to suffer in DHS
custody.
209. DHS has also failed to arrange adequate and basic educational
opportunities for R.J. during his time in DHS custody. DHS has failed to
ensure that R.J.’s
Page 66
educational records have followed his numerous placement moves. DHS has
caused R.J. to
change schools, to miss an unnecessary amount of school, and to fall
behind in school, without
any plan or services to give him the educational supports he needs.
210. DHS failed to provide the services necessary to facilitate R.J.’s
prompt
and safe reunification with his biological mother. The parental rights of
R.J.’s parents were not
terminated until early 2007, making him legally available for adoption.
However, DHS has
failed to seek and secure another permanent home for R.J. through
adoption, so he can leave
DHS custody. Instead, R.J. waits indefinitely for a long term placement,
at risk of being moved
yet again.
211. DHS’s policies and practices have caused R.J. irreparable harm and
continue to subject R.J. to the imminent risk of irreparable harm. DHS has
violated R.J.’s constitutional and statutory rights by: failing to protect him from
unnecessary harm and failing
to keep him reasonably safe from harm while in government custody; failing
to provide him with
a living environment that protects his physical, mental and emotional
safety and well-being;
failing to provide him with services necessary to prevent him from
deteriorating or being harmed
physically, psychologically or emotionally while in government custody,
including the right to
safe and secure foster placements, appropriate monitoring and supervision;
placing him in
emergency shelters or other emergency, temporary placements that are
contrary to his individual
needs and for extended periods, in violation of any reasonable
professional judgment; failing to
provide him with appropriate planning and services directed toward
ensuring that he can leave
foster care and grow up in a permanent family; failing to provide him with
treatment and care
consistent with the purpose of the assumption of custody by DHS; keeping
him in DHS custody
longer than is necessary to accomplish the purposes of taking him into DHS
custody; failing to
Page 67
provide him care, treatment, and services, determined and provided through
the exercise of
accepted, reasonable professional judgment; failing to provide adequate
instruction, supervision,
control and discipline of his DHS caseworkers; failing to provide adequate
monitoring of his
current status and needs; failing to place him in the least restrictive
placement according to his
needs; failing to develop and implement timely written case plans that
include mandated
elements; failing to provide appropriate, adequate and timely
investigations into suspected abuse
or neglect while he was in DHS custody; failing to adequately screen
foster homes prior to
placing him in such homes; subjecting him to state-created dangers in
placing him on
unsupervised visits or trial home reunification with family members
without taking reasonable
steps and providing necessary supervision to ensure his safety; failing to
preserve family connections and to facilitate visits with his siblings; failing to arrange
adequate and basic
educational opportunities; and failing to provide him with foster
placements that are receiving
adequate foster care maintenance payments so that they have the capacity
to provide for his
essential needs and services.
G.C.
212. DHS has victimized G.C. through unsafe placements and numerous
moves, the failure to provide stable and safe care from a consistent adult
caregiver, the failure to
provide required visits from her DHS caseworkers, the failure to arrange
adequate and basic
educational opportunities, the failure to arrange consistent and
appropriate mental health
services, the failure to supervise visits with relatives, and the failure
to provide services
necessary to facilitate her prompt and safe reunification with her
biological mother or, if DHS
determines that is not appropriate, the failure to seek and secure another
permanent home for G.C. out of state custody through adoption. These harms and G.C.’s
continued instability and
Page 68
risk of harm are a direct result of DHS’s drastic placement shortage,
its failure to find an
appropriate placement for G.C. and its failure to provide adequate
monitoring and oversight over
its placements and over her care.
213. G.C. entered DHS custody in Tulsa County in November of 2003, when
she was nine years old, after it was revealed that her stepfather had been
sexually abusing her
since the age of four and her mother had failed to protect her from the
abuse. With no foster
homes available, DHS first placed G.C. in the overcrowded and inadequately
supervised Laura
Dester Emergency Shelter in Tulsa for over a month, before moving her to a
foster home in
Tulsa County for less than two weeks. DHS then placed G.C. in a kinship
home with her
grandfather in Pottawatomie County for over a year, where her
step-grandmother frequently
whipped her with a leather strap. DHS moved G.C. from this unsafe and
abusive placement to
another emergency shelter, this time in Norman, for almost two months,
until she was moved to
another foster home for four months.
214. In June of 2005, DHS placed G.C. on a trial home reunification with
her
biological mother in Muskogee County, although DHS had not provided
G.C.’s mother with the
services necessary to enable her to care for her children. DHS retained
custody of G.C. and was
required to provide her with supervision, monitoring and services to
ensure her safety during the
entire trial home reunification, but failed to do so. During the five
months that G.C. was on trial
home reunification, G.C.’s “primary” DHS caseworker did not visit
her at home once, and her
“secondary” DHS caseworker from Muskogee County only saw G.C. a few
brief times. In
reality, G.C. was living with her aunt in the same home where G.C.’s
brothers were living, while
her biological mother lived separately with a boyfriend who had not
undergone a required
background check that would have uncovered his prior history of child
abuse. While living with
Page 69
her aunt, G.C. was emotionally abused and threatened with physical abuse
by her aunt.
Additionally, G.C. suffered an adverse reaction to being placed with her
brothers, who strongly
resembled her stepfather who had sexually abused her for years and whose
criminal trial and
conviction for that sexual abuse had just come to a close. As a result of
this trauma, G.C. had to
be hospitalized for more than a month, and she was diagnosed with Post
Traumatic Stress
Disorder and Reactive Attachment Disorder.
215. After her hospitalization, at the end of 2005, DHS placed G.C. in a
foster
home in Rogers County where she remained for a year, and developed a
relationship with her
foster parents. G.C.’s “primary” DHS caseworker did not visit her in
this home for four months,
and her “secondary” caseworker from Rogers County only made a few
brief visits. While in this
placement, DHS allowed G.C. to have unsupervised visits with her
biological mother and her
boyfriend, who still had not undergone a required background check. DHS
allowed these
unsupervised visits to continue for over six months.
216. In the fall of 2006, DHS performed a home study to qualify G.C.’s
uncle
and his wife as kinship foster parents for G.C. However, the home was
disqualified due to
unsafe and unsanitary conditions, including trash, beer cans and dirty
diapers all over the front
lawn, dog feces throughout the inside of the house, and exposed wires and
holes in the walls
inside the house. Nevertheless, a month later, DHS deemed this same home
suitable for G.C. to
have unsupervised overnight visits with her uncle and his family. During
the first unsupervised
weekend visit, G.C. was forced to clean dog feces throughout the house,
and her uncle hit her on
her knee, causing a serious bruise, as a warning not to speak up about the
conditions in the home.
During the second unsupervised visit to her uncle’s home, G.C.’s aunt
brought over G.C.’s
Page 70
brothers, despite the trauma G.C. had suffered the last time she was
placed with them. G.C. was
told by her uncle not to tell anyone that she had seen her siblings.
217. Following the unsupervised weekend visits with her uncle and his
family, G.C. reported suicidal ideations while at school and began to have
flashbacks of her sexual
abuse. As a result, in February of 2007, DHS placed G.C. at an inpatient
facility for two months
in a program that was overly restrictive and unsafe. Although G.C. was to
be monitored on a 24-
hour basis at the facility to ensure her safety and well-being, during
this time, she was sexually
assaulted by a male resident. DHS failed to investigate the assault. Not
surprisingly, G.C.’s
behavior significantly deteriorated during her inpatient stay.
218. In April of 2007, DHS placed G.C. temporarily in the same foster home
in
Rogers County that she had been placed in prior to her hospitalization,
but she was moved again
several months later.
219. Since August of 2007, DHS has moved G.C. among five different foster
homes, several of which were more than one hundred miles from Tulsa,
including one
overcrowded foster home with seven other children and a foster parent on
dialysis. DHS has
consistently failed to provide G.C.’s foster parents with necessary
information on G.C.’s
background, medical history and current needs. In addition, although DHS
is aware that, due to
G.C.’s history, she needs to be placed in a home with no other foster
children, DHS continues to
place her in homes with older children, accelerating the cycle of
placement disruptions and
transitions. With each new move, G.C. experiences increased feelings of
detachment and
Page 71
220. In January of 2008, DHS moved G.C. to the same institutional facility
where she had previously been sexually assaulted. G.C. remains in this
overly restrictive and
unsafe facility today, inadequately monitored and deteriorating in custody.
221. G.C. has received dangerously poor monitoring and oversight from DHS
during her time in state custody. While in custody, G.C. has suffered both
physical and sexual
abuse and has been shuffled through at least fifteen different placements
all over the state,
without adequate stability, treatment or care from DHS. Although G.C.
currently receives
multiple psychotropic medications, DHS has failed to arrange consistent and
appropriate mental
health services for G.C. to address the emotional and psychological trauma
she has suffered and
continues to suffer in DHS custody. In addition, DHS has failed to provide
G.C. with consistent,
needed therapy to address the sexual abuse she has suffered.
222. DHS has failed to arrange adequate and basic educational opportunities
for
G.C. during her time in DHS custody. DHS has failed to ensure that G.C.’s
educational records
have followed her numerous placement moves. DHS has caused G.C. to change
schools, to miss
an unnecessary amount of school, and to fall behind in school, without any
plan or services to
give her the educational supports she needs.
223. DHS has failed to provide the services necessary to facilitate G.C.’s
prompt and safe reunification with her biological mother or, if DHS
determines that is not
appropriate, to seek and secure another permanent home for G.C. through
adoption, so she can
leave DHS custody. Instead, G.C. waits indefinitely for a long term
placement, at risk of being
moved yet again.
224. DHS’s policies and practices have caused G.C. irreparable harm and
continue to subject G.C. to the imminent risk of irreparable harm. DHS has
violated G.C.’s
constitutional and statutory rights by: failing to protect her from
unnecessary harm and failing to
keep her reasonably safe from harm while in government custody; failing to
provide her with a
living environment that protects her physical, mental and emotional safety
and well-being;
failing to provide her with services necessary to prevent her from
deteriorating or being harmed
physically, psychologically or emotionally while in government custody,
including the right to
safe and secure foster placements, appropriate monitoring and supervision;
placing her in
emergency shelters or other emergency, temporary placements that are
contrary to her individual
needs and for extended periods, in violation of any reasonable professional
judgment; failing to
provide her with appropriate planning and services directed toward ensuring
that she can leave
foster care and grow up in a permanent family; failing to provide her with
treatment and care
consistent with the purpose of the assumption of custody by DHS; keeping her
in DHS custody
longer than is necessary to accomplish the purposes of taking her into DHS
custody; failing to
provide her care, treatment, and services, determined and provided through
the exercise of
accepted, reasonable professional judgment; failing to provide adequate
instruction, supervision,
control and discipline of her DHS caseworkers; failing to provide adequate
monitoring of her
current status and needs; failing to place her in the least restrictive
placement according to her
needs; failing to develop and implement timely written case plans that
include mandated
elements; failing to provide appropriate, adequate and timely investigations
into suspected abuse
or neglect while she was in DHS custody; failing to adequately screen foster
homes prior to
placing her in such homes; subjecting her to state-created dangers in
placing her on unsupervised
visits or trial home reunification with family members without taking
reasonable seps and
providing necessary supervision to ensure her safety; failing to arrange
adequate and basic
educational opportunities; and failing to provide her with foster placements
that are receiving
Page 73
adequate foster care maintenance payments so that they have the capacity to
provide for her
essential needs and services.
K.T.
225. DHS has subjected K.T. to further harm through unsafe placements and
numerous moves, the failure to provide stable and safe care from a
consistent adult caregiver, the
failure to provide required visits from her DHS caseworkers, the failure to
arrange regular
contact with her sibling, the failure to arrange special education services,
the failure to arrange
consistent and appropriate mental health services, the failure to supervise
visits with her
biological father, the failure to provide required services to enable her to
live independently
when she turns eighteen, and the failure to seek and secure a permanent home
for K.T. out of
state custody through adoption. These harms and K.T.’s continued
instability and risk of harm
are a direct result of DHS’s drastic placement shortage, its failure to
find an appropriate and
permanent placement for K.T. and its failure to provide adequate monitoring
and oversight over
its placements and over her care.
226. K.T. entered DHS custody in Oklahoma City in May of 1997, when she
was six years old, due to physical and sexual abuse by her father and
extreme neglect. With no
foster homes available, DHS first placed K.T. in the overcrowded and poorly
supervised Pauline
Mayer Emergency Shelter in Oklahoma City before moving her to an
“emergency foster home”
for a month. DHS then placed her in two separate kinship placements over the
next year, before
moving her back to the Pauline Mayer Emergency Shelter in June of 1998. DHS
kept her in the
shelter for six weeks, although she was only seven years old at the time. At
this point, DHS had
already moved K.T. through five placements in her first year in custody, and
her behavior
predictably became more disruptive.
Page 74
227. During this time, DHS allowed K.T. dangerous unsupervised weekend
visitation with her biological father who had sexually abused her. DHS
placed K.T. at great risk
of harm by allowing these visits. The visits finally ceased when K.T.
reported that there was no
food in her father’s home, that her father and his girlfriend had engaged
in inappropriate sexual
behavior in front of her and that her father had invited her mother – who
had relinquished her
parental rights – to spend time with K.T. during these visits.
228. Over the next eight years, DHS moved K.T. through numerous foster
homes and inpatient facilities, often without receiving the required visits
from her DHS
caseworker or appropriate monitoring over her care and her placements. K.T.
was diagnosed
with ADHD and Reactive Attachment Disorder and was prescribed multiple
psychotropic
medications to control her behavior during this time; however, DHS failed to
arrange consistent,
needed therapy and mental health treatment for K.T. DHS also failed to
provide K.T.
specialized placements to address her developmental delays. These failures
by DHS caused K.T.
to further deteriorate in custody.
229. DHS then placed K.T. in two separate emergency shelters over the span
of
two weeks in April of 2006 before placing her in an unsafe, poorly monitored
and inadequately
supervised group home in Lawton for over a year. This group home did not
have any specialized
staff or programs for K.T.’s developmental delays and she received none of
the attention and
specialized supports that she requires.
230. In June of 2007, DHS moved K.T. to another unsafe, poorly monitored
and inadequately supervised group home in Tulsa. This group home is located
in an old motel
near Interstate I-44, in walking distance of several seedy bars, strip clubs
and truck stops. The
only immediate outdoor space where the resident children can play is the
cement parking lot
Page 75
outside the group home. Foster children ages five through eighteen are
housed together in this
home without age or developmentally appropriate programs or treatment. The
home does not
have any specialized staff or programs for K.T.’s developmental delays and
she receives none of
the attention and specialized supports she requires. Supervision in the home
is so poor, and the
conditions in the home so unsanitary and unsafe, that children placed in
this home frequently run
away from the home for their own safety. Yet K.T. remains in this
inappropriate and dangerous
group home today, inadequately monitored and further deteriorating.
231. K.T. has received dangerously poor monitoring and oversight from DHS
during her time in state custody. After spending the past ten years in DHS
custody, K.T. has
been shuffled through more than twenty placements – many of them unsafe,
inappropriate and
inadequately supervised – without adequate stability, treatment or care
from DHS. DHS has
separated K.T. from her brother, who is also in DHS custody, and has failed
to arrange for K.T. to have regular visits with him in order to maintain critical family
relationships. Currently,
although K.T. still receives multiple psychotropic medications, DHS has
failed to arrange
consistent and appropriate mental health services for K.T. to address the
emotional and
psychological trauma she has suffered and continues to suffer in DHS
custody.
232. Although K.T. is now sixteen years old and eligible for independent
living
services, DHS has failed to provide her with required services to prepare
her to live on her own
when she turns 18 and is discharged from DHS custody, a failure made even
more dangerous by
K.T.’s developmental delays.
233. DHS has also failed to arrange special education services for K.T.
during
her time in DHS custody. DHS has failed to ensure that K.T.’s educational
records follow her
numerous placement moves. DHS has caused K.T. to change schools numerous
times, to miss
Page 76
an unnecessary amount of school, and to fall behind in school, without any
plan or services to
give her the special educational supports she needs.
234. DHS failed to provide the services necessary to facilitate K.T.’s
prompt
and safe reunification with her biological parents. Although the parental
rights of K.T.’s parents
were terminated by 2000, DHS has failed to seek and secure another permanent
home for K.T.
through adoption, so she can leave DHS custody. DHS’s permanency goal for
K.T. is long term
foster care, and K.T. waits indefinitely for a long term placement, at risk
of being moved yet
again.
235. DHS’s policies and practices have caused K.T. irreparable harm and
continue to subject K.T. to the imminent risk of irreparable harm. DHS has
violated K.T.’s
constitutional and statutory rights by: failing to protect her from
unnecessary harm and failing to
keep her reasonably safe from harm while in government custody; failing to
provide her with a
living environment that protects her physical, mental and emotional safety
and well-being;
failing to provide her with services necessary to prevent her from
deteriorating or being harmed
physically, psychologically or emotionally while in government custody,
including the right to
safe and secure foster placements, appropriate monitoring and supervision;
placing her in
emergency shelters or other emergency, temporary placements that are
contrary to her individual
needs and for extended periods, in violation of any reasonable professional
judgment; failing to
provide her with appropriate planning and services directed toward ensuring
that she can leave
foster care and grow up in a permanent family; failing to provide her with a
plan or services to
enable her to live independently when she turns eighteen; failing to provide
her with treatment
and care consistent with the purpose of the assumption of custody by DHS;
keeping her in DHS
custody longer than is necessary to accomplish the purposes of taking her
into DHS custody;
Page 77
failing to provide her care, treatment, and services, determined and
provided through the exercise
of accepted, reasonable professional judgment; failing to provide adequate
instruction,
supervision, control and discipline of her DHS caseworkers; failing to
provide adequate
monitoring of her current status and needs; failing to place her in the
least restrictive placement
according to her needs; failing to develop and implement timely written case
plans that include
mandated elements; failing to provide appropriate, adequate and timely
investigations into
suspected abuse or neglect while she was in DHS custody; failing to
adequately screen foster
VIII. Causes of Action
First Cause of Action
(Substantive Due Process Under the Fourteenth Amendment to the United
States Constitution)
236. Each and every allegation of the Complaint is incorporated herein as if
fully
set forth.
237. A state assumes an affirmative duty under the Fourteenth Amendment to
the United States Constitution to protect a child from harm when it takes that
child into its foster
care custody.
Page 78
238. The foregoing policies and practices of Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
constitute a failure to
meet the affirmative duty to protect from harm and to keep reasonably free
from harm all Named
Plaintiffs and Plaintiff Children, which is a substantial factor leading to,
and proximate cause of,
the violation of the constitutionally protected liberty and privacy interests
of all Named Plaintiffs
and Plaintiff Children.
239. The foregoing policies and practices of Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
constitute a policy,
pattern, custom and/or practice that shocks the conscience, is outside the
exercise of any
professional judgment and amounts to deliberate indifference to the
constitutionally protected
rights and liberty and privacy interests of all Named Plaintiffs and Plaintiff
Children. As a result,
all Named Plaintiffs and Plaintiff Children have been harmed and are at
continuing and imminent
risk of harm, and have been deprived of the substantive due process rights
guaranteed by the
Fourteenth Amendment to the United States Constitution.
240. These substantive due process rights include, but are not limited to: the
right to protection from unnecessary harm and to be reasonably safe from harm
while in
government custody; the right to a living environment that protects Plaintiff
Children’s physical,
mental and emotional safety and well-being; the right to services necessary to
prevent Plaintiff
Children from deteriorating or being harmed physically, psychologically or
otherwise while in
government custody, including but not limited to the right to safe and secure
foster care
placements, appropriate monitoring and supervision, appropriate planning and
services directed
toward ensuring that Plaintiff Children can leave foster care and grow up in a
permanent family;
the right to treatment and care consistent with the purpose of the assumption
of custody by DHS;
Page 79
the right not to be maintained in custody longer than is necessary to
accomplish the purposes of
taking Plaintiff Children into custody; the right to receive care, treatment
and services,
determined and provided through the exercise of accepted, reasonable
professional judgment; the
right to be placed in the least restrictive placement according to Plaintiff
Children’s needs; the
right to appropriate, adequate and timely investigations of allegations of
abuse or neglect; the
right to adequate instruction, supervision, control and discipline of
caseworkers; the right not to
be placed in overcrowded or dangerous foster homes or facilities; the right to
adequate screening
of foster care homes and other placement providers prior to placement; the
right to adequate
monitoring of the current status and needs of Plaintiff Children; and the
right not to be subjected
to state-created dangers in the placement of Plaintiff Children still in DHS
custody on visits or
trial home reunification placements with their biological parents or family
members.
Second Cause of Action
(First, Ninth, and Fourteenth Amendments to the United States Constitution)
241. Each and every allegation of the Complaint is incorporated as if fully
set
forth herein.
242. The foregoing policies and practices of the Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
constitute a failure to
exercise an affirmative duty to protect the welfare of all Named Plaintiffs
and Plaintiff Children,
which failure is a substantial factor leading to, and a proximate cause of,
violation of the
constitutionally protected liberty interests, privacy interests and
associational rights of all of the
Named Plaintiffs and Plaintiff Children.
243. The foregoing policies and practices of the Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
amount to a policy,
Page 80
pattern, custom and/or practice that is outside the exercise of any
professional judgment and
amounts to deliberate indifference to Plaintiffs’ constitutional rights. As
a result, Named
Plaintiffs and Plaintiff Children are being deprived of their liberty
interest, privacy interests and
associational rights conferred on them by the First, Ninth, and Fourteenth
Amendment to the
United States Constitution not to be deprived of a child-parent or a
child-sibling family
relationship.
Third Cause of Action
(The Federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C.
§§ 621 et seq., 670 et seq.)
244. Each and every allegation of the Complaint is incorporated herein as if
fully
set forth.
245. Under the Adoption Assistance and Child Welfare Act of 1980, as amended
by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 621-629(i),
670-679b (collectively,
the “Adoption Assistance Act”), states receive certain federal
reimbursements so long as they
enter into a plan approved by the federal Department of Health and Human
Services and comply
with its terms. Oklahoma receives federal funding under the Adoption
Assistance Act and has
submitted and entered into such a plan, which is a legal contract between the
federal government
and the State, thereby agreeing to provide child welfare services in
accordance with the Adoption
Assistance Act.
246. The foregoing policies and practices by Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
constitute a policy,
pattern, custom and/or practice of depriving all Named Plaintiffs and
Plaintiff Children of rights
conferred on them by the Adoption Assistance Act and the regulations
promulgated thereunder,
45 C.F.R. §§ 1355–57. These rights include but are not limited to: the
right to timely written
Page 81
case plans containing mandated elements, and to a case review system to ensure
the
implementation of these plans; the right to have a petition to terminate
parental rights filed, or have a compelling reason documented why such a petition has not been filed, in accordance with
specified, statutory standards and time frames; the right of Plaintiff
Children whose permanency
goal is adoption to planning and services to obtain a permanent placement,
including
documentation of the steps taken to secure permanency; the right to services
that protect Plaintiff
Children’s safety and health; the right to have health and educational
records reviewed, updated
and supplied to foster parents or foster care providers with whom the
Plaintiff Child is placed at
the time of placement; and the right of Plaintiff Children to live in foster
placements that have
the capacity to provide for their essential needs and services by receiving
adequate foster care
maintenance payments that cover the actual cost of (and the cost of providing)
the Plaintiff
Child’s food, clothing, shelter, daily supervision, school supplies,
reasonable travel to visitation
with family and other expenses. 42 U.S.C. §§ 622(b)(8)(A)
Fourth Cause of Action
(Prcedural Due Process Under the Fifth and Fourteenth Amendments to the
United States Constitution)
247. Each and every allegation of the Complaint is incorporated as if fully
set
forth herein.
248. The foregoing policies and practices of Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
constitute a failure to
exercise an affirmative duty to protect the welfare of all Named Plaintiffs
and Plaintiff Children,
Page 82
which is a substantial factor leading to, and a proximate cause of, the
violation of the
constitutionally protected liberty and privacy interests of all of the Named
Plaintiffs and Plaintiff
Children.
249. The foregoing policies and practices of the Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
constitute a policy,
pattern, custom and/or practice of failing to exercise any reasonable
professional judgment and
of deliberate indifference to the constitutionally protected liberty and
property interests of
Named Plaintiffs and Plaintiff Children. As a result, Named Plaintiffs and
Plaintiff Children
have been and are being harmed and deprived of both federal and state-created
liberty or
property rights without due process of law.
250. The foregoing policies and practices of the Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
have resulted and are
continuing to result in deprivations of federal-law entitlements arising from
the Adoption
Assistance Act and the accompanying regulations promulgated by the United
States Department
of Health and Human Services, to which Plaintiff Children have a
constitutionally protected
interest.
251. The foregoing policies and practices of the Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
have resulted, and are
continuing to result, in deprivations of the following state-law entitlements
to which each
Plaintiff Child has a constitutionally protected interest:
a. The entitlements arising from § 7003-5.6 of the Oklahoma
Statutes, requiring DHS, inter alia, to prepare a written report
every six months prior to each permanency hearing on behalf of a
child containing the status of the child and the child’s plan for permanency
Page 83
b. The entitlements arising from § 7006-1.6 of the Oklahoma
Statutes, requiring DHS, inter alia, to identify those adjudicated
deprived children who have been in DHS custody for fifteen of the
most recent twenty-two months and provide a list to the district
attorney of those cases for which termination of parental rights
petitions should be filed;
c. The entitlements arising from § 404.1 of the Oklahoma Statutes,
requiring DHS, inter alia, to complete a criminal history records
search for any person making application to establish or operate a
child care facility prior to the issuance of a license to operate such
facility and for any adult who subsequently moves into the private
residence and, prior to contracting with a foster family home for
placement of any child in the custody of DHS, requiring DHS to
complete a foster parent eligibility assessment and a national
criminal history records search for any adult residing in the foster
family home and for any adult who subsequently moves into the
residence;
d. The entitlements arising from § 7209 of the Oklahoma Statutes,
requiring DHS, inter alia, not to place a child in an out-of-home
placement prior to the completion of a foster parent eligibility
assessment, a national criminal history records search and a check
of any child abuse registry maintained by a state in which the
prospective foster parent or any adult living in the home of the
prospective foster parent has resided in the preceding five years;
e. The entitlements arising from § 7003-8.1 of the Oklahoma
Statutes, requiring DHS, inter alia, not to approve placement of a
child with a prospective foster parent if the prospective foster
parent or any other person residing in the home of the prospective
foster parent has been convicted of any of the following felony
offenses: (a) within the five-year period preceding the application
date, physical assault, battery or a drug-related offense; (b) child
abuse or neglect; (c) domestic violence; (d) a crime against a child;
or (e) a crime involving violence, including, but not limited to,
rape, sexual assault or homicide;
f. The entitlements arising from §§ 7004-1.1 and 7004-3.1 of the
Oklahoma Statutes, requiring DHS, inter alia, to assure that
children in DHS custody receive educational instruction through
enrollment in a public school or an alternative program consistent
with the needs and abilities of the child; and
g. The entitlements arising from § 7003-5.3 of the Oklahoma
Statutes, requiring DHS, inter alia, to file an individual treatment
84
and service plan with the court within thirty (30) days after a child
has been adjudicated deprived.
Fifth Cause of Action
(Breach of Federal Contractual Obligations to Third Party Beneficiaries)
252. Each and every allegation of the Complaint is incorporated as if fully
set
forth herein.
253. Under Titles IV-B and IV-E of the Social Security Act, states receive
certain federal monies so long as they enter into plans approved by HHS and
comply with their
terms. Oklahoma receives federal funding under Titles IV-B and IV-E of the
Social Security Act
and has submitted such State Plans to the federal government, which are legal
contracts between
the federal government and the State, and such plans have been approved. In
these State Plan
contracts, the State agrees to provide child welfare, foster care, and
adoption services to
Plaintiffs in accordance with specific statutes, regulations, and policies and
all applicable federal
regulations and other official issuances of the United States Department of
Health and Human
Services.
254. The foregoing policies and practices of Defendants, who directly and
indirectly control and are responsible for the polices and practices of DHS,
have breached and
continue to breach their obligations under Oklahoma’s State Plan contracts,
and all Plaintiffs, as
the intended direct third-party beneficiaries to these State Plan contracts,
are (i) being denied
their rights under law to the services and benefits that the State of Oklahoma
is obligated to
provide to them under such contracts, and (ii) being harmed thereby.
Page 85
IX. Prayer for Relief
255. WHEREFORE, the Plaintiff Children respectfully request that this
Honorable Court:
a. Assert jurisdiction over this action;
b. Order that Plaintiff Children may maintain this action as a class
action pursuant to Rule 23(b)(2) of the Federal Rules of Civil
Procedure;
c. Declare unconstitutional and unlawful pursuant to Rule 57 of the
Federal Rules of Civil Procedure:
i. Defendants’ violation of Plaintiff Children’s rights under
the Substantive Due Process Clause of the Fourteenth
Amendment to the United States Constitution;
ii. Defendants’ violation of Plaintiff Children’s rights under
the First, Ninth, and Fourteenth Amendments to the United
States Constitution;
iii. Defendants’ violation of Plaintiff Children’s rights under
the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 621 et seq., 670 et seq.;
iv. Defendants’ violation of Plaintiff Children’s right to
procedural due process under the Fifth and Fourteenth
Amendments to the United States Constitution; and
v. Defendants’ breach of their contractual obligations to
Plaintiff Children under the State of Oklahoma’s Title IV-E
and Title IV-B state plans;
d. Permanently enjoin Defendants from subjecting Plaintiff Children
to practices that violate their rights;
e. Order appropriate remedial relief tailored to the evidence proven to
the Court in order to ensure Defendants’ future compliance with
their legal obligations to Plaintiff Children;
f. Award to Plaintiff Children the reasonable costs and expenses
incurred in the prosecution of this action, including reasonable
attorneys’ fees, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. §
1920, and Federal Rules of Civil Procedure 23(e) and (h); and
Page 86
g. Grant such other and further equitable relief as the Court deems
just, necessary and proper to protect Plaintiff Children from further
harm by Defendants.
DATED: February 13, 2008
Respectfully Submitted:
R. THOMAS SEYMOUR (Bar No. 8099)
SCOTT A. GRAHAM (Bar No. 19817)
SEYMOUR & GRAHAM, LLP
FREDERIC DORWART (Bar No. 2436)
FREDERIC DORWART, LAWYERS
G. MICHAEL LEWIS (Bar No. 5404)
DOERNER, SAUNDERS, DANIEL &
ANDERSON, LLP
Page 87
BRUCE DAY (Bar No. 2238)
JOE E. EDWARDS (Bar No. 2640)
DAY EDWARDS, PROPESTER & CHRISTENSEN, PC
MARCIA ROBINSON LOWRY (pro hac vice application
pending)
IRA P. LUSTBADER (pro hac vice application pending)
YASMIN GREWAL-KOK (pro hac vice application
pending)
JEREMIAH FREI-PEARSON (pro hac vice application
pending)
CHILDREN’S RIGHTS
PHIL A. GERACI (pro hac vice application pending)
MARK A. BECKMAN (pro hac vice application pending)
R. NADINE FONTAINE (pro hac vice application
pending)
CARLY HENEK (pro hac vice application pending)
ANDREW BAUER (pro hac vice application pending)
KAYE SCHOLER LLP
J.B.
B. The Defendants
Page 11
IV. Class Action Allegations
for
Over Ten Years, Yet DHS Has Failed to Ameliorate Them or
Implement Necessary
That Fail to Provide Adequate Protection or Meet Their Needs
Number and Array of Foster Care Placements
and Inappropriate Emergency Shelters for Extended Periods of Time
Homes and Facilities While in DHS Custody
to Another, Causing Them Severe Emotional and Psychological Harm
Ties While in State Custody
Custody Subjects Plaintiff Children to Harm or Imminent Risk of
Harm
High Turnover and Inadequate Training Threaten Basic Child Safety
120. DHS caseworkers are responsible for monitoring the safety and
well-being
of foster children in state custody, ensuring that their service
needs are being met, ensuring that
the homes and facilities that care for them are meeting their needs,
and ensuring that they move
toward the goal of a permanent home out of state custody. Because of
the vital role played by
caseworkers, national professional standards prescribe caseload
limits of between twelve and
fifteen children per worker for foster care services, and caseload
limits of no more than twelve
investigation cases for workers conducting intake and child
protective service investigations.
National professional standards also prescribe supervisory ratios of
one supervisor to every five
caseworkers.
Facilities Harm Plaintiff Children and Expose Them to
Imminent Risk of Harm
Plaintiff Children to Harm or
Imminent Risk of Harm
and Safe Homes and Exits From State Custody for Plaintiff
Children
Legal Representation in the Juvenile Courts
Page 72
100 W. Fifth Street, Suite 550
Tulsa, Oklahoma 74103-4288
Telephone: 918-583-5791
Facsimile: 918-583-9251
Email: Rtseymour1@aol.
Old City Hall
124 East Fourth Street
Tulsa, Oklahoma 74103-5010
Telephone: 918-583-9922
Facsimile: 918-583-8251
Email: FDorwart@FDLAW.
320 South Boston Avenue, Suite 500
Tulsa, Oklahoma 74103-3725
Telephone: 918-591-5314
Facsimile: (918) 925-5314
Email: mlewis@dsda.
Suite 2900, Oklahoma Tower
210 Park Avenue
Oklahoma City, OK 73102
Telephone: (405) 239-2121
Facsimile: (405) 236-1012
Email: bruceday@dayedwards
edwards@dayedwards.
330 Seventh Avenue, Fourth Floor
New York, New York 10001
Telephone: (212) 683-2210
Facsimile: (212) 683-4015
Email: mlowry@childrensrig
425 Park Avenue
New York, NY 10022-3598
Telephone: (212) 836-8000
Facsimile: (212) 836-7223
Email: pageraci@kayeschole