State justices declare rights of foster kids; new hope for better care

Oversight of Washington's frayed foster-care system will remain under the control of the state, but the thousands of foster kids have a constitutional guarantee of "reasonable safety" and state budget woes are no excuse for slipshod care, the state Supreme Court ruled yesterday.

The much-anticipated ruling will make it easier for advocates to demand more state spending for foster care and other social services, say legal experts, and to hold the state accountable for future lapses.

In writing for the nine-member court, Justice Tom Chambers said, "The state owes these children more than benign indifference and must affirmatively take reasonable steps to provide for their care and safety."

Tim Farris, a Bellingham attorney who filed a 1998 lawsuit that sent the issue all the way to the state's high court, said the unanimous ruling "will be cited by child advocates around the county, and will inspire them to file similar lawsuits.

"I'd say it's the best decision in the history of the United States for children in foster care."

But the Department of Social and Health Services (DSHS) also claimed victory, citing the decision to overturn an earlier ruling that would have transferred oversight of the foster-care system, possibly to Whatcom County Superior Court Judge David Nichols.

State officials had chafed at the notion of Nichols' oversight role, deriding him in a memo as the "czar of foster care."

Yesterday's ruling also will allow DSHS to present evidence at a new trial in Whatcom County Superior Court, where the case originated. DSHS officials say they can show that Washington's system of 6,270 foster homes compares favorably with those of other states.

"It's a very good decision for us and the foster children in the state of Washington," said Dennis Braddock, head of DSHS. "We're not looking at this case as a signal at all that we can relax our efforts" to improve foster care.

Braddock said the lawsuit — Jessica Braam, et al, v. State of Washington — focused on state practices from the 1980s, which have been largely erased by new procedures and improvements, including the recruitment of more foster parents and the reduction of caseloads.

A major thrust of Ferris' lawsuit was to cap the number of times foster kids could be shuffled between foster homes at three. Both sides agreed kids should not be treated as pinballs bouncing among foster homes, but DSHS officials say moves are often the unavoidable result of abused children acting out.

The reform group behind the lawsuit, including the 128-member Children's Alliance, considers "multiple placements" of foster children a corrosive byproduct of poor funding and misguided DSHS policies. More than one-third of the 9,830 children in foster care have been moved at least three times, and Farris said he found some were moved 70 times or more.

In 2001, a Bellingham jury agreed with the reform efforts, and Nichols ordered a series of improvements the state said would have added as much as $60 million to the existing $162 million annual foster-care budget.

Yesterday's Supreme Court ruling said cost should not be an issue when complying with the constitutional rights of foster children. "Lack of funds does not excuse a violation of the constitution and this court can order expenditures, if necessary, to enforce constitutional mandates," Justice Chambers wrote.

The justices also rejected the state attorney general's argument that the state's duty to care for foster children was equivalent to its duty to house and care for prisoners. The state's lawyers had argued that prisoner care would have to be so substandard that it would "shock the conscience" before it could be considered unconstitutional.

The justices yesterday established a higher standard, noting that foster children are victims, not perpetrators.

Phil Talmadge, a former Supreme Court justice and state legislator, called yesterday's ruling historic because of its constitutional guarantee of basic services.

"This is a big ruling, not only for foster children, but this applies to lots and lots of people in the care of social services of the state of Washington," said Talmadge, a Democratic gubernatorial candidate.

But Bill Williams, the senior assistant attorney general who represented DSHS, disputed the notion that the ruling could be considered a legal landmark. He said DSHS won some key points: "There was nothing in the 3,000 pages of testimony and 250 exhibits that (showed) the department failed to provide for reasonable safety" for foster children, said Williams.

Yesterday's ruling appeared to eliminate the option of a new jury trial, sending the case back to Whatcom County for a bench trial. A date has not been set.

There is a sense of urgency to get back to trial, said Bill Grimm, an attorney with the National Center for Youth Law in Oakland, Calif., and Farris' co-counsel. "For these children, moving from home to home, pillar to post, has continued for two decades," he said. "Now we have to go back and reprove that (at a second trial). Once again relief for these children is delayed."

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com