Case 6:19-cv-556 As of 09/29/2019 12:55 PM PDT Page 1 of 13 Page ID#: <pageID>
PROTECTIVE ORD
U.S. District Court District of Oregon (Eugene (6)) CIVIL DOCKET FOR CASE #: 6:19−cv−00556−AA

Wyatt B. et al v. Brown et al Assigned to: Judge Ann L. Aiken Cause: 42:1983 Civil Rights Act
Plaintiff
Wyatt B. by their next friend Michelle McAllister

Date Filed: 04/16/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Anastasia Benedetto A Better Childhood 355 Lexington Avenue Floor 16 New York, NY 10017 646−795−4456 Email: abenedetto@abetterchildhood.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn J. Post A Better Childhood 355 Lexington Avenue Floor 16 New York, NY 10017 646−795−4456 Email: dpost@abetterchildhood.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory A. Chaimov Davis Wright Tremaine, LLP 1300 SW Fifth Avenue Suite 2400 Portland, OR 97201−5630 503−778−5328 Fax: 503−778−5299 Email: gregorychaimov@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry A Better Childhood 355 Lexington Avenue Floor 16 New York, NY 10017 646−795−4456 Email: mlowry@abetterchildhood.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily R. Cooper Disability Rights Oregon 610 SW Broadway Suite 200 Portland, OR 97205 503−243−2018 Fax: 503−243−1738 Email: ecooper@droregon.org

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ATTORNEY TO BE NOTICED

Paul J.C. Southwick Davis Wright Tremaine, LLP 1300 SW Fifth Avenue Suite 2400 Portland, OR 97201−5630 503−241−2300 Fax: 503−778−5299 Email: paulsouthwick@dwt.com ATTORNEY TO BE NOTICED

Thomas Stenson Disability Rights Oregon 511 SW 10th Avenue Suite 200 Portland, OR 97205 503−243−2081 Fax: 503−243−1738 Email: tstenson@droregon.org ATTORNEY TO BE NOTICED

Plaintiff
Noah F. by their next friend Michelle McAllister

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily R. Cooper (See above for address) ATTORNEY TO BE NOTICED

Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kylie R. by their next friend Kathleen Megill Strek

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff
Alec R. by their next friend Kathleen Megill Strek

Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily R. Cooper (See above for address) ATTORNEY TO BE NOTICED
Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED
Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED
represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily R. Cooper (See above for address) ATTORNEY TO BE NOTICED
Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED
Thomas Stenson (See above for address)

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ATTORNEY TO BE NOTICED

Plaintiff
Unique L. by her next friend Annette Smith

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily R. Cooper (See above for address) ATTORNEY TO BE NOTICED

Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Simon S. by his next friend Paul Aubry

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily R. Cooper (See above for address)

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ATTORNEY TO BE NOTICED

Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ruth T. by her next friend Michelle Bartov

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily R. Cooper (See above for address) ATTORNEY TO BE NOTICED

Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bernard C. by his next friend Ksen Murry

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily R. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Naomi B. by her next friend Kathleen Megill Strek

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn J. Post (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily R. Cooper (See above for address) ATTORNEY TO BE NOTICED

Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Norman N. by his next friend Tracy Gregg, individually and on behalf of all others similarly situated

represented by Anastasia Benedetto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn J. Post (See above for address)

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LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory A. Chaimov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily R. Cooper (See above for address) ATTORNEY TO BE NOTICED
Paul J.C. Southwick (See above for address) ATTORNEY TO BE NOTICED
Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Kate Brown Governor of Oregon in her official capacity

represented by Carla Scott Oregon Department of Justice 100 SW Market Street Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: carla.a.scott@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Marie Joyce Markowitz Herbold PC 1211 SW 5th Ave Suite 3000 Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: annajoyce@markowitzherbold.com ATTORNEY TO BE NOTICED
David B. Markowitz Markowitz Herbold PC 1211 SW 5th Ave Suite 3000 Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: DavidMarkowitz@MHGM.com ATTORNEY TO BE NOTICED
Harry B. Wilson Markowitz Herbold PC 1211 SW 5th Ave Suite 3000

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Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: harrywilson@markowitzherbold.com ATTORNEY TO BE NOTICED

Laura R. Salerno Owens Markowitz Herbold PC 1211 SW 5th Ave Suite 3000 Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: LauraSalerno@MarkowitzHerbold.com ATTORNEY TO BE NOTICED

Lauren F. Blaesing Markowitz Herbold PC 1211 SW 5th Ave Suite 3000 Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: LaurenBlaesing@MarkowitzHerbold.com ATTORNEY TO BE NOTICED

Sheila H. Potter Oregon Department of Justice Trial Division 100 SW Market Street Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: sheila.potter@doj.state.or.us ATTORNEY TO BE NOTICED

Defendant Fariborz Pakseresht

represented by Carla Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Marie Joyce (See above for address) ATTORNEY TO BE NOTICED

David B. Markowitz (See above for address) ATTORNEY TO BE NOTICED

Harry B. Wilson (See above for address) ATTORNEY TO BE NOTICED

Laura R. Salerno Owens (See above for address) ATTORNEY TO BE NOTICED

Lauren F. Blaesing (See above for address) ATTORNEY TO BE NOTICED

Sheila H. Potter (See above for address)

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ATTORNEY TO BE NOTICED

Defendant
Jana McLellan Interim Director, Child Welfare in her official capacity

represented by Carla Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Marie Joyce (See above for address) ATTORNEY TO BE NOTICED

David B. Markowitz (See above for address) ATTORNEY TO BE NOTICED

Harry B. Wilson (See above for address) ATTORNEY TO BE NOTICED

Laura R. Salerno Owens (See above for address) ATTORNEY TO BE NOTICED

Lauren F. Blaesing (See above for address) ATTORNEY TO BE NOTICED

Sheila H. Potter (See above for address) ATTORNEY TO BE NOTICED

Defendant Oregon Dept. of Human Services

represented by Carla Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Marie Joyce (See above for address) ATTORNEY TO BE NOTICED

David B. Markowitz (See above for address) ATTORNEY TO BE NOTICED

Harry B. Wilson (See above for address) ATTORNEY TO BE NOTICED

Laura R. Salerno Owens (See above for address) ATTORNEY TO BE NOTICED

Lauren F. Blaesing (See above for address) ATTORNEY TO BE NOTICED

Sheila H. Potter (See above for address) ATTORNEY TO BE NOTICED

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Date Filed 04/16/2019
04/16/2019 04/16/2019 04/16/2019
04/25/2019 05/01/2019 05/03/2019 05/03/2019 05/03/2019 05/03/2019
05/03/2019 05/06/2019
05/06/2019 05/06/2019
05/06/2019

# Docket Text
1 Complaint. (CLASS ACTION COMPLAINT) Filing fee in the amount of $400 collected. Agency Tracking ID: 0979−5813152 Jury Trial Requested: No. Filed by Simon S., Kylie R., Ruth T., Naomi B., Noah F., Bernard C., Wyatt B., Alec R., Norman N., Unique L. against Kate Brown, Marilyn Jones, Oregon Dept. of Human Services, Fairborz Pakseresht. (Southwick, Paul) (Entered: 04/16/2019)
2 Civil Cover Sheet regarding Complaint, 1 . Filed by Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., Ruth T.. (Southwick, Paul) (Entered: 04/16/2019)
3 CASE MANAGEMENT ORDER. Signed on 4/16/2019 by Judge Ann L. Aiken. (ck) (Entered: 04/16/2019)
4 Notice of Case Assignment to Judge Ann L. Aiken and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 8/14/2019. Joint Alternate Dispute Resolution Report is due by 9/13/2019. Pretrial Order is due by 9/13/2019. Ordered by Judge Ann L. Aiken. (bd) (Entered: 04/16/2019)
5 Notice of Appearance of Carla Scott appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Scott, Carla) (Entered: 04/25/2019)
6 Waiver of Service of Summons Returned Executed by All Defendants. Filed by All Plaintiffs. (Chaimov, Gregory) (Entered: 05/01/2019)
7 Motion for Leave to Appear Pro Hac Vice for Attorney Dawn Post . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−5838970. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 05/03/2019)
8 Motion for Leave to Appear Pro Hac Vice for Attorney Marcia Robinson Lowry . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−5838991. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 05/03/2019)
9 Motion for Leave to Appear Pro Hac Vice for Attorney Anastasia Benedetto . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−5839007. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 05/03/2019)
10 ORDER: Granting Application for Special Admission Pro Hac Vice of Dawn J. Post for Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., and Ruth T. Application Fee in amount of $300 collected. Receipt No. 0979−5838970 issued. Signed on 5/3/2019 by Judge Ann L. Aiken. (ck) (Entered: 05/03/2019)
11 Notification of CM/ECF Account for Dawn J. Post (Pro Hac Vice admission). Your login is: djpost. Go to the CM/ECF login page to set your password. (ck) (Entered: 05/03/2019)
12 ORDER: Granting Application for Special Admission Pro Hac Vice of Marcia Robinson Lowry for Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., and Ruth T. Application Fee in amount of $300 collected. Receipt No. 0979−5838991 issued. Signed on 5/6/2019 by Judge Ann L. Aiken. (ck) (Entered: 05/06/2019)
13 Notification of CM/ECF Account for Marcia Robinson Lowry (Pro Hac Vice admission). Your login is: mrlowry. Go to the CM/ECF login page to set your password. (ck) (Entered: 05/06/2019)
14 ORDER: Granting Application for Special Admission Pro Hac Vice of Anastasia Benedetto for Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., and Ruth T. Application Fee in amount of $300 collected. Receipt No. 0979−5839007 issued. Signed on 5/6/2019 by Judge Ann L. Aiken. (ck) (Entered: 05/06/2019)
15 Notification of CM/ECF Account for Anastasia Benedetto (Pro Hac Vice admission). Your login is: abenedetto. Go to the CM/ECF login page to set your password. (ck) (Entered: 05/06/2019)

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05/30/2019
06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/24/2019
07/11/2019
07/16/2019
07/17/2019
07/18/2019 07/23/2019

16 SCHEDULING ORDER by Judge Acosta − SETTING an initial Settlement Conference for Monday, June 24, 2019, in Judge Acosta's chambers on the 11th floor of the Mark O. Hatfield United States Courthouse, 1000 SW Third Avenue, Portland, Oregon 97204; Plaintiffs to arrive at 9:00AM and Defendants at 9:45AM. Subsequent sessions are reserved for a 9:00AM start times on Thursday, July 11th, Friday, July 12th, and Monday, August 12th. (peg) (Entered: 05/30/2019)
17 Notice of Appearance of David B. Markowitz appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Markowitz, David) (Entered: 06/14/2019)
18 Notice of Appearance of Laura R. Salerno Owens appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Salerno Owens, Laura) (Entered: 06/14/2019)
19 Notice of Appearance of Anna Marie Joyce appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Joyce, Anna) (Entered: 06/14/2019)
20 Notice of Appearance of Harry B. Wilson appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Wilson, Harry) (Entered: 06/14/2019)
21 Notice of Appearance of Lauren F. Blaesing appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Blaesing, Lauren) (Entered: 06/14/2019)
22 Unopposed Motion for Extension of Time to Answer or Otherwise Respond to Plaintiffs' Complaint, and Supporting Memorandum Complaint, 1 . Expedited Hearing requested. Filed by All Defendants. (Markowitz, David) (Entered: 06/14/2019)
23 ORDER: Granting Unopposed Motion for Extension of Time to Answer 22 . Answer is due by 7/25/2019. Ordered by Judge Ann L. Aiken. (ck) (Entered: 06/14/2019)
24 MINUTES of Proceedings: Initial Settlement Conference held by Judge Acosta. ORDER: Additional Settlement Conference dates set for 7/11/19, 7/12/19 and 8/12/19, all starting at 9:00AM. Emily Cooper, Paul Southwick, Tom Stenson, Greg Chaimov, Marcia Lowry, Dawn Post present as counsel for plaintiff(s). Lauren Blaesing, David Markowitz, Dustin Buehler, Carla Scott, Laura Salerno Owens, Joanne Southey, Sheila Potter present as counsel for defendant(s). Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 06/25/2019)
25 MINUTES of Proceedings: Second settlement conference session held by Judge Acosta. Case does not settle at this time. The third settlement conference session scheduled for July 12, 2019, is cancelled. The court will keep on its calendar the fourth settlement conference session scheduled for August 12, 2019, should the parties wish to reconvene at that time. Emily Cooper, Paul Southwick, Tom Stenson, Greg Chaimov, Marcia Lowry, Dawn Post and Chris Shank present as counsel for plaintiff(s). Lauren Blaesing, David Markowitz, Dustin Buehler, Carla Scott, Laura Salerno Owens, Joanne Southey and Sheila Potter present as counsel for defendant(s). Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) Modified on 7/12/2019 to correct duplicative initial entry.(peg) (Entered: 07/12/2019)
26 Scheduling Order by Judge Ann L. Aiken. Telephonic Status Conference is set for 7/29/2019 at 09:30AM in Eugene by telephone before Judge Ann L. Aiken. The parties shall call in to the conference. Conference call information will be provided by the Court in a separate entry. The parties are directed to file a Joint Status Report by 7/25/2019. Ordered by Judge Ann L. Aiken. (ck) (Entered: 07/16/2019)
27 Notice of Association of Attorney Carla Scott,Sheila H. Potter for Kate Brown,Sheila H. Potter for Fairborz Pakseresht,Sheila H. Potter for Oregon Dept. of Human Services,Sheila H. Potter for Marilyn Jones. Filed by Kate Brown, Fairborz Pakseresht, Oregon Dept. of Human Services, Marilyn Jones. (Scott, Carla) (Entered: 07/17/2019)
28 Notice of Change of Address Filed by All Defendants. (Blaesing, Lauren) (Entered: 07/18/2019)
29 Stipulated Motion to Substitute a Party and Change Case Caption. Filed by All Defendants. (Joyce, Anna) (Entered: 07/23/2019)

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07/23/2019 07/25/2019 07/25/2019 07/29/2019
08/02/2019 08/08/2019 08/08/2019 08/08/2019 08/15/2019 08/15/2019 08/15/2019 08/15/2019
08/22/2019

30 ORDER: Granting Stipulated Motion to Substitute a Party and Change Case Caption 29 . Ordered by Judge Ann L. Aiken. (ck) (Entered: 07/23/2019)
31 Motion to Dismiss for Failure to State a Claim , Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain. Oral Argument requested. Filed by All Defendants. (Joyce, Anna) (Entered: 07/25/2019)
32 Declaration of Anna M. Joyce in Support of Motion to Dismiss or, in the Alternative, to Make More Definite and Certain. Filed by All Defendants. (Related document(s): Motion to Dismiss for Failure to State a Claim,, Motion for more definite statement, 31 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Joyce, Anna) (Entered: 07/25/2019)
33 MINUTES of Proceedings: Telephonic Status Conference held before Judge Ann L. Aiken. The parties report that their Rule 26(f) conference is scheduled for 7/30/2019 and they are planning on a trial date in October, 2020. The parties shall submit a joint proposed scheduling order for the Court's review. A further Telephonic Status Conference is set for 9/6/2019 at 09:15AM in Eugene by telephone before Judge Ann L. Aiken. The parties shall call in to the conference. Conference call information will be provided by the Court in a separate entry. Dawn Post, Gregory Chaimov, Marcia Lowry, Emily Cooper present as counsel for plaintiffs. Carla Scott, David Markowitz, Laura Salerno Owens, Lauren Blaesing, Elleanor Chin present as counsel for defendants. Court Reporter: Sara Wilson. (ck) (Entered: 07/29/2019)
34 Fed. R. Civ. P. 26(a)(1) Agreement . Filed by Kate Brown, Jana McLellan, Oregon Dept. of Human Services, Fairborz Pakseresht. (Blaesing, Lauren) (Entered: 08/02/2019)
35 Response to Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 . Filed by Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., Ruth T.. (Southwick, Paul) (Entered: 08/08/2019)
36 SCHEDULING ORDER by Judge Acosta − STRIKING the Settlement Conference date of 8/12/19, from Judge Acosta's calendar, as the parties do not wish to proceed in that direction at this time. (peg) (Entered: 08/08/2019)
37 Motion to Strike Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 . Oral Argument requested. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 08/08/2019)
38 Joint Status Report and Discovery Plan. Filed by All Defendants. (Blaesing, Lauren) (Entered: 08/15/2019)
39 Stipulated Motion for Protective Order Stipulated Protective Order. Filed by All Defendants. (Blaesing, Lauren) (Entered: 08/15/2019)
40 ORDER: Granting Stipulated Motion for a Protective Order 39 . Signed on 8/15/2019 by Judge Ann L. Aiken. (ck) (Entered: 08/15/2019)
41 Scheduling Order by Judge Ann L. Aiken. The Court is in receipt of the parties' Joint Status Report and Discovery Plan 28 and adopts the proposed deadlines as follows: Motion for class certification is due by 10/8/2019. Defendants' opposition to class certification is due by 12/6/2019. Plaintiffs' reply in support of class certification is due by 12/20/2019. Discovery is to be completed by 4/1/2020. Expert reports are to be exchanged by 6/3/2020. Expert response reports are to be exchanged by 7/1/2020. Expert Discovery is to be completed by 7/15/2020. Dispositive Motions are due by 8/7/2020. Responses to Dispositive Motions are due by 8/28/2020. Replies to Dispositive Motions are due by 9/11/2020. Ordered by Judge Ann L. Aiken. (ck) (Entered: 08/15/2019)
42 Unopposed Motion to Correct Caption. Filed by All Defendants. (Joyce, Anna) (Entered: 08/22/2019)

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08/22/2019 08/22/2019 08/22/2019 09/05/2019 09/06/2019
09/12/2019 09/12/2019
09/12/2019 09/12/2019
09/25/2019 09/26/2019

43 ORDER: Granting Unopposed Motion to Correct Caption 42 . Defendant Fairborz Pakseresht will be corrected to Fariborz Pakseresht. Ordered by Judge Ann L. Aiken. (ck) (Entered: 08/22/2019)
44 Response in Opposition to Plaintiff's Motion to Strike to Motion to Strike Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 37 . Filed by All Defendants. (Joyce, Anna) (Entered: 08/22/2019)
45 Reply in Support of to Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 . Filed by All Defendants. (Joyce, Anna) (Entered: 08/22/2019)
46 Reply to Motion to Strike Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 37 . Filed by All Plaintiffs. (Chaimov, Gregory) (Entered: 09/05/2019)
47 MINUTES of Proceedings: Telephonic Status Conference held before Judge Ann L. Aiken. The disputed case management issues are discussed as stated on the record. The Court takes the matters of a protective order and the total number of hours for non−expert depositions per side under advisement. Formal Written Order to follow. Dawn Post, Marcia Lowry, Emily Cooper, Paul Southwick, Thomas Stenson present as counsel for plaintiffs. Anna Joyce, David Markowitz, Sheila Potter present as counsel for defendants. Court Reporter: Deborah Cook. (ck) (Entered: 09/06/2019)
48 Motion for Protective Order and Memorandum in Support. Oral Argument requested.Expedited Hearing requested. Filed by All Defendants. (Blaesing, Lauren) (Entered: 09/12/2019)
49 Order and Opinion. The total number of hours for non−expert deposition testimony is set initially at 100 hours per side. The Court will enter an Amended Protective Order which shall not change the agreed procedures for designation of information as confidential or AEO. The amended order shall allow the parties to use information derived from confidential reports in public filings in this litigation. Signed on 9/12/2019 by Judge Ann L. Aiken. (plb) (Entered: 09/12/2019)
50 Amended Stipulated Protective Order. Signed on 9/12/2019 by Judge Ann L. Aiken. (plb) (Entered: 09/12/2019)
51 ORDER: The Court has reviewed the parties' September 6, 2019 letter regarding their most recent discovery dispute. Having considered the arguments presented, and noting that defendants' representation that they will agree to extend other case deadlines as necessary, the Court orders that the deposition currently scheduled for September 16, 2019 be continued to a new date. The parties shall confer and set a mutually agreed upon date for the deposition to take place within thirty days of this order. The Court will set prompt status conferences to deal with any further disputes. The Court DENIES defendant's Motion for a Protective Order as moot 48 . Ordered on 9/12/2019 by Judge Ann L. Aiken. (rdr) Modified on 9/12/2019 to correct a transcription error. (rdr). (Entered: 09/12/2019)
52 Order. The discovery dispute submitted by the parties through joint letter on September 23, 2019, is referred to Magistrate Judge Thomas Coffin for hearing and disposition. Ordered on 9/25/2019 by Judge Ann L. Aiken. (rdr) (Entered: 09/25/2019)
53 Scheduling Order by Magistrate Judge Thomas M. Coffin. Telephonic Status Conference is set for 10/1/2019 at 11:00AM in Eugene by telephone before Magistrate Judge Thomas M. Coffin. The parties shall call in to the conference. Conference call information will be provided in a separate entry. Ordered by Magistrate Judge Thomas M. Coffin. (ck) (Entered: 09/26/2019)

 
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GREGORY A. CHAIMOV, OSB # 822180 gregorychaimov@dwt.com PAUL C. SOUTHWICK, OSB #095141 paulsouthwick@dwt.com DAVIS WRIGHT TREMAINE LLP 1300 SW Fifth Avenue, Suite 2300 Portland, OR 97201 Tel: (503) 241-2300
MARCIA ROBINSON LOWRY (pro hac vice pending) mlowry@abetterchildhood.org DAWN J. POST (pro hac vice pending) dpost@abetterchildhood.org A BETTER CHILDHOOD 355 Lexington Avenue, Floor 16 New York, NY 10017 Tel: (646) 795-4456
EMILY COOPER, OSB # 182254 ecooper@droregon.org THOMAS STENSON, OSB 152894 tstenson@droregon.org CHRISTINE SHANK (admission pending) cshank@droregon.org DISABILITY RIGHTS OREGON 511 SW 10th Avenue, Suite 200 Portland OR 97205 Tel: (503) 243 2081

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

WYATT B. and NOAH F. by their next friend Michelle McAllister; KYLIE R. and ALEC R. by their next friend Kathleen Megill Strek; UNIQUE L. by her next friend Annette Smith; SIMON S. by his next friend Paul Aubry; RUTH T. by her next friend Michelle Bartov; BERNARD C. by his next friend Ksen Murry; NAOMI B. by her next friend Kathleen Megill Strek; and NORMAN N. by his next friend Tracy Gregg, individually and on behalf of all others similarly situated,

Case No. _1_9_-_5_5_6____________ CLASS ACTION COMPLAINT

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Plaintiffs,
v.
KATE BROWN, Governor of Oregon in her official capacity; FAIRBORZ PAKSERESHT, Director, Oregon Department of Human Services in his official capacity; MARILYN JONES, Director, Child Welfare in her official capacity, and OREGON DEPARTMENT OF HUMAN SERVICES,
Defendants.

PRELIMINARY STATEMENT 1. There are thousands of children for whom the state of Oregon has assumed responsibility and, for many, is often their only parent. And it is, has been, and continues to be a constitutionally inadequate parent, revictimizing already vulnerable and innocent children. 2. Issues permeate every part of the Oregon foster care system. Overworked caseworkers struggle to not only stay on top of their daily tasks, but do so while making critical judgments in an overburdened and underfunded system. The lack of foster homes results in children being placed solely based upon availability rather than suitability, and frequent moves compound the uncertainty that foster children confront every day about what will happen to them. Oregon irregularly and infrequently assesses the needs of children in the foster care system, with the result that the child’s medical, mental health, and social needs often remain unknown and unmet. 3. The problems in the Oregon foster care system have been exhaustively documented for well over a decade. It is time that Oregon is held accountable.
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4. of them.

INTRODUCTION Children who need foster care in the State of Oregon have a daunting road ahead

5. These are children, young and old, who should be a very high priority for the state,

because they have been removed from their family homes and either need places to live while they

and their parents either receive necessary services so they can be reunited – as quickly as

possible s– or they need the state’s efforts to find them other permanent homes in which they can

safely grow up.

6. Yet the state agency with responsibility for foster care, the Department of Human

Services (“DHS”), has failed to address the desperate need for an additional number and range of

appropriate placements and necessary services, despite the fact that this problem has been known

and growing for years.

7. Children who need to be placed in foster care experience frequent moves among

many different homes and institutions, scattered throughout the state, increasing the trauma that

these children have already suffered after being removed from troubled home situations. Often,

they are separated from their siblings during placement.

8. Decisions about their service needs are made by caseworkers with too many

children to serve, too few resources, and too little training. Many caseworkers do not stay long in

their jobs and are replaced by new, inexperienced workers.

9. The system is so overwhelmed, under-resourced, and ineffective that older children

and children with even relatively mild behavior problems are often not placed by DHS in family

homes with necessary supports and services. Instead, DHS places these children in inappropriate

institutions, ships them out of state where they are placed in costly and questionable for-profit

congregate programs that do not address their needs, or largely abandons them so they wind up in

homeless shelters or on the streets.

10. Although Oregon is a state-run child welfare system, policies and practices differ

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widely from county to county. There is little meaningful effort by state leadership at DHS to ensure the uniform applicability of these policies and practices and the uniform availability of necessary services to children who should be the beneficiaries, not the victims, of this system.

11. A separate, more limited lawsuit, seeking to regulate the placement of children in

hotels, has instead resulted in simply a shifting of the problem, with an increasing number of

children now being sent out of state to congregate care and placed in inappropriate, overly

restrictive institutions, including repurposed juvenile detention facilities.

12. Individual lawsuits against DHS have resulted in large damage awards for

widespread violations of individual children’s rights, at a resulting cost to the state of over $39

million since 2006. The state of Oregon currently faces eight personal injury lawsuits brought on

behalf of current and former foster children.

13. After more than a decade of reports, audits, and reviews exhaustively documenting

these problems, DHS has failed to adequately redress the worsening conditions for foster children.

14. Even when the state has attempted to respond to the call for lower caseloads, it has

done so ineffectively. It has hired additional workers while other workers continue to depart only

resulting in a net gain of a handful of workers a month, statewide, because the state has not

addressed systematic problems in a child welfare system that is continuing to harm the very

children who are dependent on it.

15. Specifically,

a. DHS fails to employ a minimally adequate number of caseworkers to

provide appropriate care and services for children, many case workers are

not provided adequate training or support necessary to carry out their

responsibilities, and the turnover rate among child protection case workers

is high;

b. Defendants do not promptly evaluate and assess the unique needs of each

child, in many cases failing to evaluate their needs at all, preventing

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caseworkers from adequately planning for appropriate placements and outcomes for foster children; c. When it is necessary to remove children from their homes, children often languish in over-taxed and improperly utilized temporary placements, and many children experience multiple destabilizing moves between foster homes and institutions; d. DHS has placed children in hospitals for days when there was no medical reason for doing so, lodged children in homeless shelters and minimally refurbished delinquency institutions, refrained from removing children from known abusive or neglectful homes, temporarily housed children in overcrowded general foster care homes, or placed children in poorly screened child-specific kith or kin foster homes. e. Children who have emotional, intellectual, psychological or physical disabilities, whose health conditions often worsen while in foster care, are deprived of necessary and appropriate services and treatment to ensure equal access to a stable, family-like foster placement in the least restrictive environment. f. Lesbian, gay, bisexual, transgender, queer and questioning (“LGBTQ”)1 children, particularly transgender children in transition and children who are in the process of coming out about their sexuality or gender identity, are often deprived of a safe and stable placement and face the dangerous choice of either staying in the closet or risking the termination of their placements.

1 To be inclusive of the many sexual orientations and gender identities of children in Oregon’s child welfare system, the term sexual and gender minorities (“SGM”), rather than LGBTQ, will be used throughout the remainder of the complaint. SGM is an umbrella term encompassing LGBTQ, two-spirit, non-binary and intersex populations and others whose sexual orientation, gender identity, gender expressions, or reproductive development varies from traditional, societal, cultural, or physiological expectations.

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g. DHS fails to provide foster parents with adequate support, to adequately train and financially compensate foster parents, and to recruit additional foster parents, particularly those willing and able to care for children with disabilities.
h. For children who are or should be available for adoption, Defendants fail to seek and secure appropriate adoptive homes in a timely manner. Many such children may remain in foster care for years or, in some cases, until they become legal adults and age out of the child welfare system, frequently into homelessness.
i. For older children who remain in foster care, many receive no placements or planning for transition to adulthood at all, and are forced into institutions or homeless shelters, without the skills and resources necessary to survive on their own when they leave foster care.
16. The children who are in the custody of DHS, and those who will be in DHS custody in the future, bring this civil rights action against DHS and its leaders, who are their legal custodians, for violations of their rights under federal law. They seek declaratory and injunctive relief for the many violations of these rights.
PARTIES I. PLAINTIFFS
17. Plaintiffs Wyatt B. and Noah F.2 are respectively three- and one-year-old children who are in the custody of DHS, who have undergone multiple foster home moves, and who are separated. They appear through their next friend, Michelle McAllister.
18. Plaintiffs Kylie and Alec R. are respectively seven- and eight-year-old children who are in the custody of DHS and who have undergone multiple foster home moves. Kylie is currently

2 The children’s names are pseudonyms, but their actual first and last initials are used.

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placed at the Parry Center and Alec is in his fourth foster home placement. They appear through their next friend, Kathleen Megill Strek.
19. Plaintiff Unique L. is nine years old, is in the custody of DHS, and is currently placed at Acadia Montana. She appears through her next friend, Annette Smith.
20. Plaintiff Simon S. is 13 years old, is in the custody of DHS, was recently released from Jasper Mountain, and is living with his paternal grandmother. He appears through his next friend, Paul Aubry.
21. Plaintiff Ruth T. is 15 years old, is in the custody of DHS, and is currently placed at Forest Ridge in Iowa. She appears through her next friend, Michelle Bartov.
22. Plaintiff Bernard C. is 15 years old, is in the custody of DHS, and is currently placed in River Rock, a wing of the Douglas County juvenile detention facility. He appears through his next friend, Ksen Murry.
23. Plaintiff Naomi B. is 16 years old, is in the custody of DHS, and is currently placed at the Jackson Street Homeless Shelter. She appears through her next friend, Kathleen Megill Strek.
24. Plaintiff Norman N. is 17 years old, is in the custody of DHS, and is currently placed at St. Mary’s Home for Boys. He appears through his next friend, Tracy Gregg.

II. DEFENDANTS 25. Defendant Kate Brown is the Governor of the state of Oregon and is sued solely in
her official capacity. She is the chief executive of Oregon and is charged with faithfully executing the laws of the state and of the federal government.
26. Defendant Fariborz Pakseresht is the Director of the Oregon Department of Human Services (“DHS”) and is sued solely in his official capacity. DHS is the principal human services agency of the government of the state of Oregon and has responsibility for the Child Welfare Agency, which is a subdivision of the Department. Defendant is responsible for DHS’ policies, practices, and operations, and for ensuring that DHS complies with all applicable federal and state

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laws. 27. Marilyn Jones is the Director of Child Welfare, a subdivision within the Oregon
Department of Human Services, and is sued solely in her official capacity. She oversees programs

including safety, well-being and permanency, and is responsible for Child Welfare’s policies,

practices, and operations, and for ensuring that Child Welfare complies with all applicable federal

and state laws.

28. Defendant Oregon Department of Human Services (“DHS”) is a state agency

created and authorized under the laws of the State of Oregon. It is authorized by law to maintain

and ultimately is responsible for maintaining the Department, and its Child Welfare department,

which acts as DHS’ agent in the area of protecting the safety and welfare of children.

JURISDICTION AND VENUE

29. This action arises under the Constitution and laws of the United States, including

42 U.S.C. § 1983. The Court has jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331

and 1343(a), as well as the under the Adoption Assistance and Child Welfare Act of 1980

(“AACWA”), 42 U.S.C. § 670 et. seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12131(2), Section 504 of the Rehabilitation Act (“Section 504” or “RA”), 29 U.S.C. § 794, and

the respective implementing regulations.

30. This Court has jurisdiction to issue declaratory and injunctive relief pursuant to 28

U.S.C. §§ 2201 and 2002 and Rule 57 of the Federal Rules of Civil Procedure.

31. Venue in this district is proper pursuant to 28 U.S.C. § 1391(b) and divisional venue

is appropriate in the Eugene Division pursuant to local rule 3-2 because the claims arise in this

district. Although the governor, DHS, and Child Welfare are responsible for children all over the

state, their administrative and managerial functions are operated out of their headquarters, which

are located in Salem, in the Eugene Division.

CLASS ACTION ALLEGATIONS

32. This action is properly maintained as a class action pursuant to Rules 23(a) and

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23(b)(2) of the Federal Rules of Civil Procedure. 33. This action consists of one major class and three sub-classes: a. All children for whom the Department of Human Services has or will have

legal responsibility and who are or will be in the legal and physical custody

of the Department of Human Services, (“the general class”); and, as sub-

classes:

i. Children who have or will have physical, intellectual, cognitive, or

mental health disabilities (the “ADA sub-class”).

ii. Children who are or will be 14 years old and older, who are eligible

for transition services and lack an appropriate reunification or other

permanency plan (the “aging out sub-class”).

iii. Children who identify as sexual or gender minorities, including

lesbian, gay, bisexual, queer, transgender, intersex, gender non-

conforming and non-binary children (the “SGM sub-class”).

34. Each class is sufficiently numerous to make joinder impracticable.

a. The general class consists of approximately 8,000 children who currently

are in the foster care custody of the Oregon Department of Human Services.

b. The ADA sub-class consists of over 50% of children currently in foster care

who experience physical, intellectual, cognitive, or mental health

conditions;

c. The aging out sub-class consists of at least 900 youth. Based on reports that

roughly 1300 Oregon foster children are 16 years or older, and estimates

that 71% of them will depart foster care other than to adoption,

reunification, or permanent family-like placement. DHS is required to

provide Independent Living Services (“ILS”) to children 14 years and older

and it is reasonable to assume that there are at least 200 children between

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the ages of 14 and 16 in foster care. d. The SGM sub-class consists of approximately 400 youth, based on research
studies demonstrating that nearly 20% of foster children 12 years or older

identify as SGM (including 13.4% identifying as lesbian, gay, bisexual or

queer and 5.6% identifying as transgender), and reports that roughly 2,000

Oregon foster children are 12 years or older. Moreover, 40% of homeless

foster children identify as SGM, and of those, approximately 30% report

aging out of the child welfare system into homelessness.

35. The questions of fact and law raised by named Plaintiffs are common to and typical

of those of each putative member of the class and sub-classes whom they seek to represent.

36. The named Plaintiffs rely on Defendants for foster care services in Oregon and

wholly depend on DHS for provision of those services.

37. Defendants’ long-standing and well-documented actions and inactions

substantially depart from accepted professional judgment and constitute deliberate indifference to

the harm, risk of harm, and violations of legal rights suffered by the named Plaintiffs and the class

and sub-classes they represent.

38. Questions of fact common to the classes include:

a. whether Defendants fail to protect the general class from physical,

psychological, and emotional harm, and risk of harm;

b. whether Defendants deprive Plaintiffs of the ADA sub-class necessary and

appropriate services and treatment to make them as able as their non-

disabled peers to access an array of community-based placements and

services to ensure access to the least restrictive environment.;

c. whether Defendants deny members of the Plaintiffs’ aging out sub-class

skills and resources necessary to learn to live independently, and providing

them with necessary training, skills, and assistance in securing appropriate

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housing upon discharge; d. whether Defendants deny Plaintiffs of the SGM sub-class necessary and
appropriate services and placements to prevent them from experiencing a

higher than average number of foster care placements, a higher likelihood

of living in a congregate care setting and a higher incidence of violence and

harassment from foster parents and peers;

e. whether the Defendants operate a system that promptly and adequately

assesses the individual needs of members of the class;

f. whether Defendants operate a system that adequately plans placements,

treatment, and supports appropriate to the individual needs of the members

of the class and sub-classes;

g. whether the Defendants operate a system that provides an adequate diversity

of placements to permit the members of the class to reside in the most

integrated, least restrictive, and most family-like environment;

h. whether the Defendants provide adequate case worker resources to ensure

that members of the class can routinely meet with caseworkers face-to-face

and engage in individual services; and

i. whether the Defendants offer supports and case worker resources adequate

to ensure that foster children 14 years or older receive transition planning

to ensure children that age out of the system into adulthood have adequate

planning and resources to meet future housing, employment, educational,

and other social needs.

39. Questions of law common to the classes include:

a. whether Defendants’ systemic failures violate Plaintiffs’ substantive rights

under the Due Process Clause of the Fourteenth Amendment to the United

States Constitution, including exposing children to further neglect, abuse,

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and trauma by exposing them to unnecessary and too-frequent moves; b. whether Defendants’ systemic failures violate Plaintiffs’ right to all
reasonable efforts to achieve permanency, under the First, Ninth, and

Fourteenth Amendments to the United States Constitution, including by

separating them unnecessarily from their families, siblings, and moving

them to isolated placements;

c. whether Defendants’ systemic failures violate Plaintiffs’ rights under the

Adoption Assistance and Child Welfare Act of 1980, as amended by the

Adoption and Safe Families Act of 1997, including their right to placement

in the least restrictive, most family-like home and their right to all

reasonable efforts to achieve permanency; and

d. whether Defendants’ systemic failures violate Plaintiffs’ rights under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(2), Section

504 of the Rehabilitation Act (“Section 504” or “RA”), 29 U.S.C. § 794,

and the respective implementing regulations, including by unnecessarily

placing youth with disabilities in institutional settings and denying them

access to community-based treatment.

40. The violations of law and resulting harms alleged by Plaintiffs are typical of the

legal violations and harms and/or risk of harms experienced by all of the children in the class and

sub-classes.

41. The named Plaintiffs will fairly and adequately protect the interests of the class and

sub-classes that they seek to represent.

42. Defendants have acted or failed to act on grounds generally applicable to all

members of the class or, where appropriate, sub-classes, necessitating class-wide declaratory and

injunctive relief.

43. Counsel for Plaintiffs know of no conflict among the class members.

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44. The named Plaintiffs are represented by the following attorneys, who are competent and experienced in class action litigation, child welfare litigation, and complex civil litigation:
 Attorneys from Davis Wright Tremaine LLP, a full-service law firm with eight offices in the U.S., including partner Greg Chaimov, who served as attorney-in-charge of the Special Litigation Unit for the Oregon Department of Justice and who is experienced in class action litigation, and counsel Paul Southwick, an expert in legal advocacy for SGM youth, both of whom who have extensive experience and expertise in complex litigation, in state and federal courts throughout the United States;
 Attorneys from A Better Childhood, Inc., a non-profit legal advocacy organization, including the Executive Director, Marcia Robinson Lowry, who has extensive experience and expertise in federal child welfare class actions throughout the United States, and Deputy Director Dawn J Post, who has over 16 years of experience in child welfare practice and litigation; and
 Attorneys from Disability Rights Oregon, the designated protection and advocacy agency for the state of Oregon pursuant to ORS 192.517, who have brought individual and class action litigation to cause substantial, systemic changes to improve access and services for individuals with disabilities, including Legal Director, Emily Cooper, Deputy Legal Director Ted Stenson, and Managing Attorney Christine Shank. FACTS

III. THE PLAINTIFF CHILDREN A. Wyatt B. & Noah F. 45. Three-year-old Wyatt B. and one-year-old Noah F. have been in the custody of the
Department of Human Services off and on since September 2018. They are both members of the general class.

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46. Wyatt and Noah appear through their next friend, Michelle McAllister. Ms. McAllister is a former Social Service Specialist having served the state of Oregon for a total of 10 years. She has known Wyatt and Noah since their births and regularly sees them when she

facilitates or attends visits with the biological mother. She is familiar with both the family’s

background and Wyatt and Noah’s current needs and is truly dedicated to their best interests.

47. Wyatt was born with a congenital heart defect, which will require surgery as soon

as he gains enough weight. Wyatt has been under the care of a cardiologist since birth and takes a

number of medications three times a day.

48. Wyatt and his infant brother Noah were placed in the custody of DHS in mid-

September 2018 due to allegations of domestic violence and drug abuse in the home.

49. Despite Wyatt’s medical condition, neither he nor his brother, Noah, were

identified as having any other special needs or behavioral issues.

50. Upon information and belief, during the children’s first three weeks of placement

in foster care, beyond one initial foster home, the children were moved almost constantly,

sometimes twice within a 24-hour period, totaling 6-7 placements, because of the lack of longer-

term foster homes in Oregon. This compounded the trauma that they had already experienced due

to their removal from their mother’s care.

51. Ultimately a decision was reached to separate the children and a supervisor was

sent to remove the infant Noah from the latest foster home. When the supervisor opened Noah’s

packed bag, he found Wyatt’s heart medications and discovered that the foster parents had been

giving the infant not only medications that were not necessary, but ones intended for a much larger

child. In addition, Wyatt had not been receiving the medications necessary to manage his

congenital heart defect. Noah was immediately hospitalized and remained for two nights. Despite

the fact that Wyatt had not been provided his necessary medication, DHS did not take him to be

evaluated by either the hospital or his cardiologist.

52. By happenstance, their mother had a scheduled visit that same day. However, DHS

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did not notify her about the medication mix-up or hospitalization. She was simply informed that when the Social Service Assistant (“SSA”) had gone to pick up the children for the visit she had discovered that the children were unavailable, as they had just been moved. Upon information and

belief, the SSA and/or their mother was provided this information to conceal the medication mix-

up. While Noah remained in the hospital, Wyatt was left in the home where the medication mix-

up had occurred.

53. Two days later, their mother was informed that her scheduled visit with the children

had been cancelled because the children were ill. Again, DHS did not affirmatively notify her

about the medication mix-up or Noah’s hospitalization.

54. When their mother was finally able to reach the DHS supervisor, several hours later,

he discussed the mother’s case plan with her before finally telling her about the medication mix-

up and hospitalization, which he casually described as a “total goof-up.”

55. When their mother expressed concern about the children’s frequent placement

moves, the supervisor stated, “I know, it’s ridiculous.” He then stated that DHS had even

conducted a state-wide search and had not been able to find a single home that would be able to

accept both children. The children’s Court Appointed Special Advocate (“CASA”) recognized the

gravity of the situation, describing the mix-up in her report to the court as a “potentially life

threatening mistake.”

56. DHS then developed an in-home plan, which allowed the children to be returned to

the mother, which occurred on or about October 5, 2018.

57. During the children’s first period in foster care, in addition to multiple moves, the

children had two case workers, two permanency workers, and two supervisors, compounding the

confusion not only for the children but for the adults involved as well.

58. Due to allegations, Wyatt and Noah’s mother had contact with her husband, who

had been charged with domestic violence against her, the children were again placed in foster care

shortly after Thanksgiving. Over the course of approximately one week, the children were moved

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almost daily. They were then separated and placed in different foster homes. 59. During one of their mother’s visits, she observed that the dosage of Wyatt’s
medication had been lowered without explanation or consultation with his cardiologist. Their

CASA reported to the court that “Wyatt’s medicines have been mishandled twice now that this

CASA is aware of. That is unacceptable, when these medications can be fatal if given incorrectly.

DHS needs to set up a protocol that ensures proper oversight of these meds.”

60. Prior to their removal, the children had rarely spent time away from their mother.

As a result of the trauma of being removed from his mother and subsequently cycled through 12-14

homes in two different placement episodes, Wyatt has begun to exhibit significant behavioral

issues. He is now described by the caseworker and CASA in reports as an angry child, displaying

fits including flailing, hitting, kicking, screaming and throwing things.

61. The infant Noah has begun to have night terrors, screaming loudly in the middle of

the night while appearing to remain asleep. His foster parent makes efforts to soothe him until he

eventually wakens and the cycle begins again. Noah needs be held constantly and throws a tantrum

if he is put down or if focus is moved away from him.

62. DHS has informed the court that the only way to keep the children together was “at

the expense of frequently moving placements” as “[t]he county was not able to locate a suitable

and sustainable placement that could house both children long term in county or anywhere else in

the state of Oregon.” DHS acknowledged that “the frequent changes in placement [had] a

significant adverse impact on each child’s behavior.”

63. In mid-March 2019, Wyatt’s foster mother informed DHS that she was taking a

break from fostering and asked that he be moved by April 1, 2019. DHS was unable to locate a

placement by the deadline which has now been extended to April 4, 2019.

64. Upon information and belief, to date DHS has been unable to develop a plan to

reunite the siblings, made any new efforts to locate a suitable placement to do so, or developed a

plan to allow the children to be returned to their mother.

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65. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate Wyatt and Noah’s substantive due process and federal statutory rights. Defendants have failed to protect Wyatt and Noah from harm and risk of harm while in their care by failing to properly provide for their medical needs, subjecting them to placement instability, and separating them. Wyatt and Noah continue to be at risk of irreparable harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.

B. Kylie R. and Alec R. 66. Kylie R. and Alec R. are seven- and eight-year-old siblings who have been in the custody of DHS since late January 2019, and are members of the general class. 67. Kylie and Alec were removed from their mother due to allegations of neglect and substance abuse. Kylie and Alec were unable to remain with their mother with an in-home safety plan because DHS was unable to locate a substance abuse program for her. 68. Both Kylie and Alec were extremely bonded to their mother and experienced significant trauma from their removal. Their trauma was then exacerbated by near constant moves as DHS was unable to locate a suitable placement. Despite having been in care for less than two months, Kylie has been in five different placements and Alec has been in four. Kylie has run away from the two separate foster placements and found her way back to her mother’s home. 69. Kylie suffers from tantrums, which have escalated in duration and intensity during her placement in foster care. DHS has failed to find appropriate placements and, perhaps more critically, failed to advise any of her foster parents about these behaviors so that they would be prepared and properly equipped to immediately address them. 70. During one placement, the foster parents advised Kylie and Alec’s attorney that the children were dropped off with the foster family on a Friday afternoon, which was not even provided with the children’s last name or with their Oregon Health Plan cards, let alone advised about the tantrums. Kylie had tantrums throughout the weekend and DHS did not respond to the foster parents’ multiple frantic phone calls for advice on how to address them. As a result, on

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Sunday afternoon, the foster parents took Kylie to the hospital because they were concerned that she would hurt herself. However, the foster parents were unable to complete the intake process because they did not know the children’s last names and could not reach anyone at DHS.
71. Kylie and Alec had lice when they came into foster care. Upon information and belief, they were not appropriately treated, and had lice visibly crawling on their heads. DHS had not provided any of the foster parents with Kylie and Alec’s Oregon Health Plan numbers, so they were not able to access their primary physician to obtain a prescription for lice treatment. Kylie was extremely embarrassed about her lice and did not want to attend school.
72. Kylie and Alec have now been separated. Kylie was placed in a residential psychiatric facility, the Parry Center, in Portland. Upon admission, Kylie was finally treated for the lice, more than six weeks after her initial placement foster care. However, her shoulder length hair had to be shaved off. As a result, Kylie now refers to herself as a boy. Alec remains in the last foster home he was placed in just a few weeks ago. Their mother has now been referred for services and visits them regularly.
73. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate Kylie and Alec’s substantive due process and federal statutory rights. Defendants have failed to protect Kylie and Alec from harm and risk of harm while in their care by failing to properly provide for their medical and behavioral needs, subjecting them to placement instability, and separating them. Kylie and Alec continue to be at risk of irreparable harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.

C. Unique L. 74. Unique L. is nine years old and has been in the custody of DHS for two and a half years. She is a member of the general class and ADA sub-class. Unique appears through her next friend, Annette Smith. Ms. Smith has been Unique’s attorney for two and half years, visits her regularly, remains in regular communication with her, and is truly dedicated to Unique’s best

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interests. 75. When 9-year-old Unique came into foster care, her mother was diagnosed with a
significant mental health condition, was verbally abusive to her children, and kept them out of

school. In addition, Unique’s step-father was sent to prison for sexually abusing Unique’s sibling

and it is suspected he also sexually abused Unique. Unique’s mother has a long history with child

welfare including having her parental rights terminated with respect to two older children. Unique

has struggled with emotional and behavioral issues since she was six.

76. After Unique became involved with DHS, she changed placements multiple times

and periodically cycled through Jasper Mountain’s SAFE Center, a short-term 30-90 day program

designed to help stabilize residents. During these placements Unique generally did not have

contact with her mother, based upon therapeutic recommendations as well as her mother’s failure

to follow-up on the prescribed case plan. Due to DHS’ lack of therapeutic placements, Unique

spent months at the SAFE Center well past her scheduled discharge dates.

77. In June 2017, Unique was finally moved to a therapeutic placement. She continued

to have no have contact with her mother, who was focused on maintaining custody of Unique’s

siblings. Following a period of phone contact, visitation with her mother began again in October

2017. Around the same time, Unique began Attention Deficit/Hyperactivity Disorder (“ADHD”)

medication, which benefitted her focus in school. However, Unique’s behavior in the foster home

began to decline, culminating in April 2018 when the therapeutic foster home informed DHS that

they could no longer care for Unique, following a visit with her mother.

78. Despite the fact that the mother’s therapist had informed DHS that the mother was

not ready to have Unique returned to her care, DHS nevertheless returned Unique to her mother

when they were unable to locate a therapeutic placement for her. Inexplicably, DHS

simultaneously sought to dismiss the case, however, over Unique’s attorney’s objection. Shortly

thereafter, Unique’s mother locked her outside on the porch and began leaving messages with

multiple professionals involved in the case demanding that Unique be removed from her home.

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79. Specifically, in one voicemail message, the mother stated: “…it’s time for us to have someone come and intervene and get this little bitch out of my house, cause I’m fucking done now, she can’t come back in, she’s on the porch, she ain’t allowed in my fucking house. All her

shit is packed. Her fucking dresser is gonna be out there, anything I can get out of this house right

now, she got to go, she gotta fucking go, she ain’t sleeping in here tonight. So, unless I need to call

911, somebody needs to fucking come and get her.”

80. In a second voicemail message, an exchange between the mother and Unique was

recorded in which Unique can be heard crying and screaming, “Mommy please don’t do this.”

81. Unique was placed at the SAFE Center for a 72-hour stay, then moved to a

temporary foster home, before being placed in an Oregon Community Program (“OCP”)

therapeutic foster home.

82. On July 17, 2018, Unique received a psychiatric assessment that recommended “a

combination of mental health and behavioral support services to manage her symptoms of anxiety,

ADHD, PTSD and especially transitions between foster homes and the adjustment to the differing

expectations in a new home and school setting…Placement in a BRS Treatment Foster Care home

seems an appropriate level of care at this time to evaluate and stabilize her.”

83. On July 18, 2018, Unique removed a piece of broken glass from her makeup bag

and threatened to hurt herself.

84. On August 8, 2018, Unique destroyed property in the OCP lobby. OCP informed

DHS that Unique needed to be discharged within 30 days. On August 14, 2018, the police were

called to the OCP foster home because Unique was being verbally and physically aggressive and

was destroying property. OCP requested an immediate discharge and Unique was again moved the

SAFE Center for a short stay.

85. Between August 16, 2018 and October 23, 2018, Unique was placed at Albertina

Kerr Sub-Acute facility in Portland, in a regular foster home in Veneta, and at least twice in the

emergency department of a hospital.

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86. Unique saw a psychiatrist at Albertina Kerr who diagnosed her with PTSD, combined type ADHD, noted a significant history of unpredictability and volatility, and noted the impact of significant disruptions in attachment to caregivers.

87. On September 27, 2018, Unique walked into the street, yelling obscenities at other

students, stated she did not want to be alive and tried multiple times to walk into traffic.

88. In October 2018, Unique was placed in Acadia Montana in the state of Montana.

Acadia Montana is a 108-bed Residential Treatment Center for young people ages 5-18 and is

advertised as short-term with the average length of the stay lasting three to six months.

89. At Acadia Montana, Unique has engaged in tantrums that have resulted in her being

placed in 4-person holds, 2-person holds, and seclusion by staff. Unique weighs approximately 90

pounds.

90. Unique is also regularly subjected to the use of chemical restraint by the Acadia

Montana staff when she engages in a tantrum. Specifically, Unique has a significant number of “as

needed” medications, authorized in the moment by the doctor, which are either generally

administered through intra-muscular injections unless Unique cooperates and takes the

medications orally. The staff uses these medications to induce calming effects. Unique is also on

a daily course of oral medications including an anti-psychotic and an anti-convulsant/anti-epileptic

although she does not experience seizures.

91. In addition to concerns that Unique’s attorney has raised about the effects such

drugs may have on a developing nine-year-old body, the regular use of holds, seclusion and

injections at Acadia Montana demonstrates that little to no therapeutic interventions are being used

to promote self-regulation and skill development.

92. Upon information and belief, no one from any child welfare agency has visited

Unique since she was initially placed at Acadia Montana in October 2018. Despite being advertised

as a short-term facility, upon information and belief, DHS has no plan or timeline to bring Unique

back to Oregon. DHS is currently paying $330 per day, $120,450 per year, for Unique’s placement

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at Acadia Montana. 93. Defendants’ actions and inactions, policies, patterns, customs, and/or practices
have violated and continue to violate Unique’s due process and federal statutory rights. Defendants have failed to protect Unique from harm and risk of harm while in their care by failing to properly provide for her behavioral and mental health needs, failing to provide her necessary therapeutic placement in Oregon, and confining her in locked facilities. She has been deprived of necessary and appropriate services and treatment to ensure equal access to a stable, family-like foster placement and for appropriate placements including the least restrictive environment. Unique continues to be at risk of irreparable injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.

D. Simon S. 94. Simon S. is a 13-year-old boy who was recently released from Jasper Mountain and placed with his paternal grandmother in a licensed foster home. He appears through his next friend, Paul Aubry. Mr. Aubry has been Simon’s attorney for over one year, visits him regularly, remains in regular communication with him, and is truly dedicated to Simon’s best interests. Simon is a member of the general class and the ADA sub-class. 95. Simon and his younger sister were first referred to DHS in 2010. To date, over 35 reports have been made, many by mandated reporters, detailing physical abuse, sexual abuse, and neglect. Simon was frequently reported to have facial bruising and black eyes, scratches, bruising on his body, welts and bruising including on his forehead, and cut and swollen lips. In October 2011 alone, six reports were made documenting injuries to Simon’s face, head and body. On every occasion, Simon stated that the injuries were caused by his father. 96. No action was taken until February 2012 when Simon was removed for a period of ten months due to allegations of physical abuse and neglect. In May 2012, Simon told a staff member that he had been sexually abused by another relative, and a report of maltreatment was immediately made to DHS. The reporter noted that Simon’s disclosure was consistent with

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observed sexualized behaviors. Nonetheless, DHS closed the case at screening. Simon was ultimately returned to his parents’ home.
97. Despite the fact that multiple reports were made concerning Simon’s continuing

sexual abuse, DHS took no action with regard to these reports for over three years. In the interim,

Simon attended the same school as his abuser, and DHS made no efforts to investigate the claims

he had made, or to provide any counselling or services.

98. In January 2014, a school official contacted DHS regarding their concerns that

Simon was being sexually abused by a family member who also attended the same school. The

school reported during this call that, “no charges were brought against the [alleged abuser] though

DHS did an investigation and has every reason to believe abuse did occur […] there is nothing

legal to keep the two apart though the school has been doing its best.”

99. The school official informed DHS that Simon had started defecating in his pants

after seeing his abuser in the hallways, apparently as a means of protecting himself against further

molestation, and regularly arrived at school with feces in his pants and pockets. While Simon

started seeing a counselor at school, the counselor stated, “It’s difficult to treat a child with these

issues who lives in a home that is not safe, supportive and sanitary.” DHS yet again closed the case

at screening and Simon remained in the home.

100. For over a year thereafter, Simon came to school with feces in his underwear, pants,

and pockets. Despite additional reports to DHS, Simon’s mother minimized his behavior, stating

it was merely because “Simon is just too lazy to go to the bathroom and won’t use the toilet as the

seat is too cold.” DHS closed the case at screening.

101. Simon was removed from the house for a second time in June 2015 for a period of

fourteen months and placed into foster care. However, rather than provide services and treat and

protect Simon, DHS staff imposed “safety plan” restrictions on Simon’s presence in his family

household, on the grounds that Simon could pose a threat of a sexual nature to his younger sister

due to the abuse he had suffered. As a result, DHS restricted Simon from being in the home with

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his sister, allowing one child only in the home at one time. DHS maintained legal custody over Simon, and required that the children were never in the parents’ home at the same time together for more than a year. When Simon was not in the home, he was placed in non-kinship foster care.

102. In December 2017, Simon was removed from the parents’ home and placed in a

high-level therapeutic treatment center called SAFE Center at the Jasper Mountain facility in

Springfield, Oregon. According to Jasper Mountain’s website, it is intended to be a 30-day to 90-

day program. Simon remained at the program for 15 months.

103. Jasper Mountain determined that Simon could step down to a lower level of care as

early as October 2018, if an appropriate level of placement was identified, because he no longer

required the high level of care they provided. In addition, the court issued an order that Simon be

placed in a therapeutic placement close to home. However, DHS failed to locate an appropriate

therapeutic foster home for Simon, as had been recommended by Jaspar Mountain and directed by

the court.

104. After a number of extensions, Jasper Mountain finally discharged Simon on

March 8, 2019. Despite having known that his grandmother was willing to have Simon live with

her as early as February 2019, DHS delayed certifying her as a foster parent and he lived with her

in a hotel on a “visit” for a week and then at her home for a week until she could be certified as a

foster parent on Mach 20, 2019.

105. An independent psychologist hired by Simon’s attorney has concluded that Simon

should continue to be maintained in a relative placement where he could receive treatment and

services in the least restrictive environment that meets his needs, and an independent sexual

behavioral therapist identified by Simon’s attorney, and recommended by the psychologist, has

been willing to treat Simon. Yet, to date no such treatment has begun.

106. As of March 2019, Simon has been removed from his home on three different

occasions and been in either foster care or a therapeutic residential facility for a total of 38 months,

in eight different settings, in his fifty-eighth month (almost 5 years) of being under DHS

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supervision and care. 107. Despite having ample time to do so, DHS has failed to create a viable plan for either
reunification with his family or other permanent plan. 108. Defendants’ actions and inactions, policies, patterns, customs, and/or practices
have violated and continue to violate Simon’s due process and federal statutory rights. Defendants have failed to protect Simon from harm and risk of harm while in their care by failing to properly provide for his behavioral and mental health needs, failing to provide him necessary therapeutic placement, and until recently unnecessarily confining him at Jasper Mountain, which is a locked facility. He has been deprived of necessary and appropriate services and treatment to ensure equal access to a stable, family-like foster placement and for appropriate placements including in the least restrictive environment. Simon continues to be at risk of irreparable harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practice.

E. Ruth T. 109. Fifteen-year-old Ruth T. entered foster care in the spring of 2017, and is a member of the general class, the ADA sub-class, and the aging out sub-class. She is currently placed out of state, in Iowa, in a residential facility called Forest Ridge. 110. Ruth appears through her next friend, Michelle Bartov. Ms. Bartov has served as Ruth’s attorney for close to one year and is in regular communication with her. She is truly dedicated to Ruth’s best interests. 111. Ruth and her younger brother entered foster care after their mother died of an accidental drug overdose while Ruth was in the home. The household was chaotic, and Ruth was effectively left in charge of the home and of her brother. She experienced trauma as a result of being left frequently in the care of drug dealers and because of effective abandonment by parents who, though physically present, played little parental role. According to reports, DHS suspects that Ruth had been sexually abused. 112. DHS placed the children with their maternal grandmother, licensed as a kinship

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foster parent, immediately after they entered DHS custody. 113. At the time of her mother’s death, Ruth was attending school only a few hours a
day because she had poor socialization skills and behavioral issues, and the rural school district

was unable to provide necessary supportive services for her to remain in the classroom.

114. Ruth did not have a psychological evaluation until six months after she was placed

with her grandmother although DHS has a policy requiring that children be evaluated within 60

days of placement. The evaluator noted that “[t]here was profound object hunger and attention-

seeking, most of it negative, loud or demanding, for this clearly lonely, needy, regressed youngster

who came across in the interview as one might expect of a child of six or 7, not a young lady of

over the age 14.” Ruth presented as “desperate to be noticed but with no social skills […] with

clearly pathologically deficient social skills, a pathological degree of insecure anxiety, and

pathological needs for control of immediate interpersonal situations.”

115. The evaluator provided a list of recommendations for DHS to implement in order

to assist Ruth therapeutically and academically. The evaluator also recommended that, given the

maternal grandmother’s hesitancy about keeping Ruth long-term, DHS develop a plan to transfer

Ruth to longer-term therapeutic foster care so that if a transfer were to occur it could happen with

minimal confusion. In a therapeutic foster home, the evaluator noted, Ruth would need to begin

“intensive behavioral reconditioning” and work on issues relating to authority and boundaries.

116. DHS did not implement any of the recommendations to ensure services were

provided in the least restrictive environment.

117. Because DHS did not ensure that Ruth received the appropriate treatment, her

dysfunctional behaviors continued unaddressed. Just a few months later, DHS was contacted by

Ruth’s school and informed that Ruth displayed very defiant behaviors and that the school

indicated they were reluctant to work with her further. DHS developed a plan to remove Ruth from

a regular educational setting in order to be homeschooled through a web-based program. As a

result of DHS’s failure to address her emotional and behavioral needs, Ruth lost her opportunity

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to participate in community-based education in her neighborhood school. 118. In March 2018, Ruth was re-evaluated. The evaluator found that “[w]hile Ruth was
unable to or unwilling to give details, it sounds like her childhood was traumatic at worst and

without parental structure or appropriate socialization at best.” The most outstanding characteristic

of the interview was Ruth’s “disrespectful speech and attitude” and reports of “extreme social

impulsiveness and inappropriateness.” The evaluator recommended that Ruth receive three

specific courses of behavioral therapy.

119. Again, DHS did not implement the recommendations.

120. Ruth was finally removed from the maternal grandmother’s home in April 2018

when she reported that her grandmother had hit her. After an unsuccessful placement in a

subsequent foster home, which lasted only a few weeks, Ruth was sent to Creekside, a refurbished

police department facility in Douglas County, over six hours away. Creekside quickly decided that

they could not keep her long term, set a deadline for DHS to pick her up, and advised: “She is

very much spiraling out of control…. She definitely operates at about a 6-year-old, if not younger,

mentally…. She also follows around other residents and pesters them, even when they ask for

space. It’s pretty bad.”

121. As DHS searched for an alternative placement, Ruth’s attorney was informed:

“DHS has NO one and NO place at this moment who will agree to care for her.” On June 29,

2018, Ruth’s attorney questioned why DHS had made no effort to implement the recommendations

that had been made by mental health professionals in an effort to obtain a therapeutic placement

for her. The case planner admitted the recommended treatments had been “somewhat put on hold.”

122. DHS has now placed Ruth in a residential facility in Iowa called Forest Ridge. Ruth

has never demonstrated behaviors that typically require a higher level of care, such as an unusual

diagnosis requiring specialized treatment, sexualized behaviors, fire setting, or extreme violent

acts. Despite this, DHS stated to Ruth’s attorney that not only was there no one or place who would

take Ruth in Oregon, there was also no other place in the entire country that would accept Ruth

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despite at that time not having made any other referrals nor ensuring access to services in the least restrictive environment.
123. Forest Ridge specializes in Gender Responsive Services for adolescent girls in the

juvenile justice system and is run under an umbrella for-profit organization called Sequel, with

which Oregon has contracted to place foster children with all over the country. DHS is currently

paying $330 per day, $120,450 per year, for Ruth’s placement at Forest Ridge.

124. Forest Ridge employs a system in which residents are “offered immediate feedback

from both staff and peers.” Forest Ridge is a campus-like setting where children are housed in

cottages. Forest Ridge also employs restraints. 125. Ruth is visited once a month by a courtesy worker from Iowa’s local Department
of Human Services. Upon information and belief, the visits are cursory and the reports are

boilerplate with a few extra lines are added after each visit when they are submitted to DHS.

126. To date, recommendations concerning Ruth’s educational and therapeutic needs

have been ignored and DHS has no plan or timeline to bring her back to Oregon. Ruth struggles to

understand her current circumstances, feels isolated and abandoned by the system that was

supposed to help her, and cannot envision a future where she will ever be able to return home.

127. Defendants’ actions and inactions, policies, patterns, customs, and/or practices

have violated and continue to violate Ruth’s due process and federal statutory rights. Defendants

have failed to protect Ruth from harm and risk of harm while in their care by failing to properly

provide for her behavioral and mental health needs, failing to provide her with a necessary

therapeutic placement in Oregon, and confining her in locked facilities. She has been deprived of

necessary and appropriate services and treatment to make her as able as her non-disabled peers to

access a stable, family-like foster placement and for an appropriate placement in the least

restrictive environment. Ruth continues to be at risk of irreparable harm as a result of Defendants’

actions and inactions, policies, patterns, customs, and/or practices.

F. Bernard C.
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128. Fifteen-year-old Bernard C. first entered foster care at the age of three and was adopted with his sister by his great-grandparents in 2008. Bernard’s great-grandfather passed away in 2009 and his great-grandmother in 2012, at which point DHS placed the children back in their

biological mother’s care. The children re-entered foster care in 2013 when Bernard was

approximately 10 years old, after DHS received reports of physical abuse by Bernard’s mother,

sexual abuse by his brother, and substance use and domestic violence in the home.

129. Bernard is transgender and is a member of the general class, ADA sub-class, aging

out sub-class, and SGM sub-class.

130. Bernard appears through his next friend, Ksen Murry, who is sincerely dedicated

to Bernard’s best interests. Mr. Murry is a solo practitioner whose practice is dedicated to

providing accessible representation in family law matters with an emphasis on serving traditionally

underserved populations, including members of the LGBT community.

131. As Bernard entered placement in December 2013, his primary permanency goal

was listed as Another Planned Permanent Living Arrangement (“APPLA”). Bernard was placed

in two different foster homes in the first month of placement.

132. Bernard came into foster care with a history of significant trauma manifesting as

flashbacks, intrusive thoughts, and occasional nightmares. DHS’ failure to address the trauma, or

to place Bernard with foster parents who understood trauma and resulting behaviors, has resulted

in his experiencing ongoing depression, anxiety and anger throughout his time in foster care which

in turn has resulted in further placement instability.

133. In 2015, a psychologist noted it was likely that Bernard was emotionally abused

and/or neglected in kinship placements and that these placements negatively impacted him and

exacerbated his level of insecurity and increased his symptoms of Post-Traumatic Stress Disorder

(“PTSD”).

134. The psychologist noted that enrollment and continuity in therapy was critical if

Bernard were to make progress with respect to addressing his acting out behaviors, to help him

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feel more secure and socially comfortable, to prevent continued thoughts related to harming himself, to improve relationships with peers, and begin to make plans for the future.
135. Since placement, DHS has not ensured that Bernard has received continuity in

therapy.

136. The psychologist also recommended that DHS ensure that Bernard be placed in a

highly supportive, predictable, and loving home environment in order to formulate a strong bond

with a care provider and experience long-term support, nurturance, role modeling, and guidance

from a parental figure.

137. Since placement, DHS has not ensured that Bernard be maintained in such a

placement.

138. DHS acknowledged this itself within the first two years of placement, stating

“[Bernard] has suffered tremendous loss in [his] life with significant moves. [Bernard] has not

been able to engage in services to address [his] needs for the appropriate amount of time due to

placement disruption.” Despite the fact that Bernard had at that point identified as transgender,

DHS placed him in an all-girls facility called Wildflowers through Whiteshield. This placement

created more confusion and aggravated Bernard’s gender dysphoria.

139. In the past five years, Bernard has been placed in 12-15 different foster homes and

more than seven residential facilities. He has experienced rejection from some short-term foster

families because of his gender identity. Bernard’s complex history of trauma, abandonment, and

multiple moves impact his day to day functioning, ability to make and maintain healthy

relationships, and his overall mood and anxiety levels, particularly in unsuitable and unstable

placements.

140. Over the years, Bernard’s birthname has not been treated confidentially by staff at

some of his residential placements. Other foster youth at his residential facilities have seen or heard

his birth name and have used it to taunt him. The lack of confidentiality has caused him to be outed

as transgender and has provoked his gender dysphoria. Bernard becomes severely emotionally

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triggered when he is referred to by his birth name or the wrong pronoun. 141. Bernard has no sense of home or community and feels incredibly isolated. He has
few supports in his life. In 2018, a psychologist observed that: “[Bernard’s] sense of self, while

mature and well-formed for his age (rather than being nebulous or wavering), is quite negative.

Both his depressed mood and his poor sense of self are driven by feelings of being isolated, lonely,

and rejected. Although wary of others and expecting rejection, [Bernard] also feels quite needy for

others' care and closeness, which he has not consistently had in his life. He may go back and forth

between trying to keep himself detached and feeling almost desperate, which will come out in his

behaviors in interactions. This intensity and lability will also be seen in [Bernard’s] moods and

how he expresses them. Ultimately, his desperation is maladaptive, frustrating him into flashes of

acting-out behaviors and impacting his ability to perceive others and interactions realistically, and

at times even resulting in illogical reasoning.”

142. Bernard is currently placed at River Rock, a shelter facility in a section of the

Douglas County juvenile detention center. Upon entering the facility, children are subjected to

physically invasive strip-searches and a thorough search of their belongings. Upon information

and belief, the cells and furnishings in the dependency facility at River Rock are the same as those

in the delinquency facility. The children take daily cold showers at scheduled times. At night

children are secured in old delinquency cells where the doors are closed remotely and

simultaneously. The doors are locked preventing children from using the bathroom at night and

are controlled from the delinquency control center.

143. In addition to placements and therapy, Bernard’s education has been significantly

disrupted. Currently, Bernard attends an alternative school for three hours per day which includes

physical education, gardening and shop. Bernard is worried that this path of continued

institutionalization will not provide him with the skills or resources necessary to live on his own

when he ages out of foster care.

144. As a transgender male, Bernard has been taking prescription testosterone for over

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two years. His hormone injections should be administered weekly. In the month since he has been placed at River Rock, he has only had one testosterone injection. Abrupt cessation of testosterone has been linked to immediate withdrawal symptoms.

145. Failure to provide the treatment will result not only in intensified psychological

harm as Bernard’s depression will worsen but also in irreversible, unwanted physical changes that

will have a permanent negative impact on his later treatment options and quality of life as he may

be flooded with estrogen and start female puberty. Bernard has already started to experience hot

flashes.

146. Bernard does not have any clothing except what has been provided by the facility

which is “jailhouse” garb consisting of a sweatpants and t-shirts. Although he been provided with

binders for his chest he only has been provided with two pairs of underwear.

147. This has been compounded by the fact that Bernard has also not been receiving his

anti-depressant medication while at River Rock. Bernard has a history of suicidal thoughts and

engaging in self-harming behaviors such as cutting when he is depressed. In the past he has made

statements such as "I hate my life. I just want to die” and "I want my life to be over.” He has

attempted to overdose on several occasions. Moreover, Bernard’s difficulties with accessing

medically necessary medication have been compounded by the loss of his therapist in Portland

who is also transgender and he has not received appropriate therapeutic support since he was

placed at River Rock.

148. Bernard currently struggles with living in a rural, less tolerant environment, as well

as in an institution where he has been harassed due to his gender identity. Other children make fun

of him for being transgender and call him degrading names like “transformer” and “faggot.” The

facility does not have windows and Bernard has been deprived of any private time outside,

effectively isolating him inside the facility with his bullies.

149. Placement disruptions have also led to delays in Bernard getting gender conforming

surgery.

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150. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continued to violate Bernard’s due process and federal statutory rights. Defendants have failed to protect Bernard from harm and risk of harm while in their care by failing to properly provide for his medical and mental health needs, failing to provide him with a necessary therapeutic placement, and restraining him in locked facilities. As a transgender youth, he has been deprived of necessary and appropriate LGBTQ-specific services and treatment. The only LGBTQ-specific residential treatment programs available to Bernard are in Texas and Utah. Bernard continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.

G. Naomi B. 151. Naomi B. is 16 years old and has been in the custody of DHS since November 2018. She is a member of the general class, ADA sub-class, and the aging out sub-class. Naomi appears through her next friend, Kathleen Megill Strek. Ms. Strek has been Naomi’s attorney for approximately five months, visits her regularly, remains in regular communication with her, and is truly dedicated to Naomi’s best interests. 152. Prior to being taken into DHS custody, Naomi had been living with her father in Corvallis, Oregon. Naomi had previously been treated by her primary physician with a mild antidepressant for agoraphobia and depression, but she was unable to engage in therapy because her father objected. 153. On November 14, 2018, Naomi presented at the emergency room at Good Samaritan Hospital threatening suicide. The hospital recommended that she receive therapy but her father objected. Naomi was brought back to the emergency room the following week, after cutting her arm with a razor. DHS initiated an immediate investigation. 154. Naomi was never officially admitted into the hospital although she remained in the emergency room for six days. The hospital recommended that she be placed in foster care. 155. When DHS was unable to locate a placement for her, and DHS had concluded that

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Naomi would be at serious risk if returned to her father, Naomi’s father gave DHS permission to place Naomi at the Jackson Street youth shelter, a homeless shelter which DHS contracts with for placements. Upon discharge to the shelter, the hospital recommended that Naomi follow-up

with her primary care physician and participate in outpatient mental health treatment. Naomi

stayed at the homeless shelter for approximately 15 days and did not receive any mental health

treatment during that time despite these medical recommendations.

156. On December 13, 2018, Naomi was moved by DHS to a higher level of care at

Creekside, a refurbished police department headquarters.

157. On her first day at Creekside, Naomi was attacked by another resident who “didn’t

like how [she] looked.” Later that evening, after Naomi was locked in her room, her roommate

attempted suicide by cutting her wrists in front of Naomi. Naomi ran away from Creekside and

was picked-up by the local police.

158. Naomi was then placed at River Rock, a shelter facility in a refurbished section of

the Douglas County juvenile detention center. Upon entering the facility Naomi was subject to a

physically invasive strip-search and a thorough inspection of her belongings. Upon information

and belief, the cells and furnishings in the dependency facility at River Rock are the same as those

in the delinquency facility.

159. In order to avoid returning to Creekside, Naomi stated that she was overwhelmed

and “didn’t want to be around anymore.” As a result, she was held in a cell until she received

transport to the emergency room. Naomi explained to the Mercy Hospital staff in Roseburg that

Creekside triggered her PTSD. Upon discharge from the emergency room, Naomi was transported

back to Corvallis and re-placed at the Jackson Street youth shelter for another four days. During

all this time, she received no mental health treatment or services.

160. Naomi had provided DHS with information on three families she believed would

be willing to care for her. Upon information and belief, DHS failed to contact any of these families.

Finally, and at the prompting of Naomi’s attorney, DHS was able to approve and place her in one

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of these homes. However, the placement disrupted after ten days. 161. Again, because DHS had no other placement options, Naomi was placed for the
third time at the Jackson Street youth shelter.

162. A hearing to determine Naomi’s status in foster care took place on January 8 and

9, 2019. Although Naomi asked to be allowed to live with her mother in Idaho, the court denied

the application and DHS was granted custody of Naomi.

163. When DHS again placed Naomi in the Jackson Street youth shelter, for the fifth

time, Naomi ran away and went to Idaho to try to live with her mother. Shortly thereafter, Naomi

was picked up by local law enforcement and transported to the local Juvenile Detention Center in

Bonner County, Idaho, where she remained for two days until she was transported back to

Corvallis in a secure, locked transport.

164. On January 16, 2019, Naomi was returned to Jackson Street for the sixth time.

165. On January 23, 2019, Naomi was placed at the Youth Inspiration Program (“YIP”)

in Klamath Falls, Oregon. The YIP is a rehabilitation program designed as, “the most intensive

service for girls at risk of going to the state youth correctional facilities.”

166. At the program’s inauguration, Dan Golden, the director of Klamath County’s

Juvenile Department, described the YIP as, “the last step before the big jail for them, a youth

correctional facility.” In a recent editorial, State Representative E. Warner Reschke (HD 56) said

of his support for YIP funding, “I am advocating for the Klamath Youth Inspiration Program’s

funding …. to help troubled young women learn life skills in order to change their trajectory of

crime to self-supporting stable citizens.” There have been no allegations that Naomi is at risk of

delinquent behavior and her placement at the YIP did not meet her emotional and mental health

needs.

167. Upon information and belief, the Klamath Falls YIP facility is a delinquency

facility with which DHS contracts to place foster children in extra beds. The building is divided

into two otherwise identical sections: the YIP side, and the juvenile delinquency side. The foster

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children placed in the YIP program, like Naomi, share an exercise yard with the other facilities. The outdoor exercise yard is approximately 30 feet by 30 feet, entirely concrete, and enclosed by a 20-foot-tall chain-link fence with quills of barbed wire along the top. They also share an indoor

exercise yard, approximately the size of a racquetball court.

168. An independent case manager hired by Naomi’s attorney verified that the facility

is locked. It is not possible to enter or leave without being buzzed in or out. Naomi was not allowed

outside privileges while at the YIP.

169. If the child is deemed by staff to be a safety risk at YIP they are not allowed to have

personal possessions in their room. Children are permitted one book in their rooms at a time. All

clothes and other personal items are secured in lockers in a locker room.

170. Behavioral issues from children trigger lock down events where all the children are

required to return to their cells, which are then locked. The independent case manager observed

this occur several times during her visit with Naomi. In addition, children are required to be locked

out of their rooms for periodic searches.

171. Since being taken into care in November, Naomi was unable to maintain her

education. The YIP only allows the girls to complete approximately one-and-a-half to two-and-a-

half hours of online schooling daily. In the two months that Naomi was placed at the YIP, she

nearly exhausted all educational online offerings.

172. Since November 2018 until present, Naomi has not been provided adequate

counseling or therapy. Between superficially cutting herself with a razor on November 21, 2018,

and her sixth placement at Jackson Street on January 16, 2019, Naomi did not have access to any

counseling or therapy. Her subsequent placement at the YIP did not offer sufficient counseling or

therapy to meet Naomi’s needs. Naomi was required to attend daily group substance abuse therapy

sessions, despite the fact that she did not have a substance abuse problem, as well as sex abuse

sessions, despite not having been sexually abused. While she received one hour of weekly

individual therapy, it was insufficient to address the issues that she presented with.

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173. DHS contracts with a local provider, Klamath Basin Behavioral Health (KBBH), for medical and mental health treatment for parents and children in custody. While at YIP Naomi was not only prescribed Trazadone and Zoloft but the psychotropic, Risperdal, as well. Risperdal

is used to treat schizophrenia in adults and children who are at least 13 years old as well as

symptoms of bipolar disorder in adults and children who are at least 10 years old. Upon

information and belief, the Risperdal was not prescribed by a psychiatrist but by a “qualified

mental health provider.” KBBH was recently sued by two former therapists who claimed that they

were fired after blowing the whistle on illegal mental health hold practices.

174. The YIP uses behavior interventions with children to help them learn how to self-

regulate. If the girls were found to exhibit “good behavior” in the program, they were allowed

to wear dresses on Fridays and were supplied with tampons during their monthly cycles.

Otherwise, they were required to use sanitary napkins. Naomi immediately informed her attorney

who brought it to the attention of DHS, lawmakers and the media in late March 2019.

175. At the time that this issue was raised, Governor Brown had asked lawmakers to

expand Klamath County’s YIP program to serve more teenage girls in DHS custody. At that time,

Dan Golden, the director of the YIP, directed that girls be granted access to three free tampons at

a time, but only if they turned over their used hygiene products to staff.

176. Golden defended the county program, in part by referring to Naomi, who was

identified by name in correspondence he shared with the lawmakers and others, including details

he said were her experiences and health challenges before she arrived at the program. Upon

information and belief, the experiences and health challenges that he raised were grossly distorted.

Golden also shared portions of Naomi’s records with at least one politician. Both actions clearly

violated state and federal confidentiality laws.

177. Following an investigation by DHS, four girls in foster care who were assigned to

the YIP program, including Naomi, were moved to other locations.

178. On March 29, 2019, Naomi was returned to the Jackson Street homeless shelter for

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the seventh time. 179. Upon information and belief, DHS does not have a plan for Naomi’s care beyond
her current placement at the Jackson Street homeless shelter. 180. Defendants’ actions and inactions, policies, patterns, customs, and/or practices
have violated and continue to violate Naomi’s due process and federal statutory rights. Defendants have failed to protect Naomi from harm and risk of harm while in their care by failing to properly provide for her behavioral and mental health needs, failing to provide her necessary therapeutic placement, placing her in homeless shelters, and confining her in locked facilities. She has been deprived of necessary and appropriate services and treatment to ensure equal access to a stable, family-like foster placement and for an appropriate placement in the least restrictive environments. Naomi continues to be at irreparable risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs and/practices.

H. Norman N. 181. Norman N. is 17 years old and has been in and out of the custody of DHS since November 2005. He is a member of the general class, ADA sub-class, and the aging out sub-class. Norman is currently placed at St. Mary’s Home for Boys (“St. Mary’s”) where he has been for the past ten months. 182. Norman appears through his next friend, Tracy Gregg. Ms. Gregg has been Norman’s attorney for over 2 years, visits him regularly, remains in regular communication with him and is truly dedicated to Norman’s best interests. 183. Norman was initially removed from his home when he was two and a half years old due to his parents’ drug use and his father’s verbal abuse. Upon information and belief, between 2005 and 2012, Norman was returned to his father’s sole care at least five times. It is unclear what services and supports were provided to ensure reunification was successful as Norman returned to foster care each time and has effectively grown up in the child welfare system. His final removal from his father’s home was in November 2012 after the police performed a wellness check and

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found Norman and his two younger siblings at home unattended with drug paraphernalia scattered throughout the house.
184. Cycling back and forth into foster care, and experiencing at least 50 placements,

has taken a significant toll on Norman as he has suffered trauma, abuse, neglect, and experienced

related anger issues. A psychological evaluation from 2013 indicates that Norman “has an

extensive history of trauma, including neglect, physical and emotional abuse, witnessing parental

substance abuse, and suspected sexual abuse.”

185. Norman has been diagnosed with Attention Deficit Hyperactivity Disorder

(ADHD), Anxiety, and Post-Traumatic Stress Disorder (PTSD) and has been prescribed

medications to help manage these conditions. Norman is also currently on an Individualized

Education Plan (IEP) to support his disability related behaviors in the classroom.

186. Consistent mental health treatment has been recommended for Norman to address

his trauma since he was two years old. He has also been assessed and found eligible to receive

assistive learning services to learn and modulate his impulsive and disruptive behaviors. However,

access to all of these necessary and recommended therapeutic treatment has been interrupted

regularly by a constant revolving door of placements and lack of assistive learning services.

187. Norman estimates that he has been through 50 placements, including dozens of

foster homes, hotel rooms, and at least four facilities including Children’s Farm Home, Jasper

Mountain SAFE center, two stays at St. Mary’s, and the Northwest Children’s Home in Idaho.

Some of these placements include time in juvenile detention for non-compliance with the terms of

his probation, including running away from foster homes in order to be with his mother. None of

these placements were with tribal members or individuals who identified as Native American

despite the fact that Norman identifies as being a member of the Pokagon Band of Potawatomi.

188. Despite documentation of Norman’s tribal membership in his 2018 DHS care plan,

he has been denied the opportunity to practice native heritage in his current placement at St.

Mary’s. For example, he would like to grow his hair out in accordance with Native American

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tradition. However, due to a rule at St. Mary’s, he has only been able to maintain short hair. 189. Due in large part to DHS’ failure to provide for Norman’s disabilities, including
near constant placement changes, Norman has had explosive outbursts that resulted in property

damage.

190. For example, after Norman’s final removal from his father in 2012, he was placed

in a foster home with his two younger siblings who had never been in foster care before. Norman

felt very protective of them and did not trust the strangers that were now responsible for their care.

Scared, Norman had a behavior outburst and was removed from the foster home and separated

from his brothers.

191. Norman was also placed in a foster home that was very dirty. He ran away, but

returned to reclaim his belongings. When the foster parent denied Norman access to his bedroom

and belongings Norman became angry. Norman engaged in property damage for which he was

placed on probation and owes restitution.

192. During institutional placement through Christian Community Placement Center

(“CCPC”), Norman was supposed to be permitted to visit with his mother every Tuesday.

However, upon information and belief, he was denied these visits with his mother if he hadn’t

showered, cleaned his room, woke up on time, or otherwise followed the strict rules at this facility.

193. Norman was also placed in a therapeutic foster home through CCPC. During this

placement he witnessed the foster parent smoke marijuana and aggressively headbutt his foster

brother. The boys reported this to DHS and Norman was moved again: this time, out of state.

194. Norman was placed at the Northwest Children’s Home in Idaho in September of

2017. His caseworker alleged this out of state placement was the only available option as they

were unable to find another placement in Oregon although it is unclear what efforts were made by

DHS to find a less restrictive placement in his community. Norman remained in the Idaho facility

for ten months.

195. Norman describes the program in Idaho as chaotic and unstructured. Children often

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fought and staff would not intervene. Staff routinely placed children in restraints after tackling them and taking them forcibly to the ground. Staff would also drag youth into locked seclusion rooms. As a result of the restraints, Norman suffered abrasions on his arms and dislocated joints.

Once, while Norman was being restrained by staff members, multiple other youth assaulted

Norman. Staff did not protect Norman from the assault and his nose was broken.

196. In June 2018 when Norman was discharged from this facility and screened into his

now second placement at St. Mary’s, Norman was identified to have begun engaging in self-

harming behaviors including cutting.

197. Norman’s permanency goal is Another Permanent Plan Living Arrangement

“APPLA.” However, he has not received the appropriate skills and resources necessary to survive

on his own when he leaves foster care through case planning appropriate to meet the health care,

educational, employment, housing, and other social needs that he needs when he ages out.

198. DHS has recently begun planning with Norman’s mother as a discharge resource

when he turns 18. Norman’s mother has had substance abuse issues and experienced housing

instability. Recently, however, she has been working with counselor at St. Mary’s and following

up with all case worker recommendations including regular family therapy sessions. While

Norman and his mother are both hopeful that this plan will be successful, Norman needs to

continue to receive supports and resources from DHS when he is discharged from St. Mary’s such

as learning appropriate independent living skills to ensure he can survive in adulthood in case it

does not.

199. Defendants’ actions and inactions, policies, patterns, customs, and/or practices

have violated and continue to violate Norman’ due process and federal statutory rights. Defendants

have failed to protect Norman from harm and risk of harm while in their care by failing to properly

provide for his behavioral and mental health needs, failing to provide his necessary therapeutic

placement, and confining him in locked facilities. He has been deprived of necessary and

appropriate services and treatment as well as the skills and resources necessary to live

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independently when he ages out of foster care. Norman continues to be at risk of irreparable harm as a result of Defendants’ actions and inactions, policies, patterns, customs and/practices
Federal and State Requirements for Child Protection Systems IV. THE UNITED STATES CONSTITUTION AND FEDERAL LAW IMPOSE
CERTAIN REQUIREMENTS FOR THE OREGON CHILD WELFARE SYSTEM. 200. The Due Process Clause of the United States Constitution imposes an affirmative
obligation upon state and local child welfare officials to: a. Ensure that each child placed in foster care is free from the foreseeable risk of physical, mental, and emotional harms; b. Ensure that each child placed in foster care receives the services necessary to ensure their physical, mental, intellectual, and emotional well-being in the least restrictive environment; c. Provide each child placed in foster care with conditions, treatment, and care consistent with the purpose and assumption of custody; d. Ensure that each child placed in foster care is not maintained in custody longer than is necessary to accomplish the purpose of custody; and e. Provide each child placed in foster care with reasonable efforts to obtain an appropriate permanent home and family within a reasonable period of time.
201. Federal law requires that state and local child welfare officials: a. Place each child in foster care in a foster placement that conforms to nationally recommended professional standards, 42 U.S.C. § 671(a)(10); b. Provide for each child placed in foster care a written case plan that includes a plan to provide safe, appropriate, and stable foster care placements and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(A); c. Provide for each child placed in foster care, where reunification is not possible or appropriate, a written case plan that ensures the location of an

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appropriate adoptive or other permanent home for the child and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(E); d. Provide for each child placed in foster care a written case plan that ensures

the educational stability of the child while in foster care and implement that

plan, 42 U.S.C. §§ 671(a)(16), 675(1)(G);

e. Maintain a case review system in which each child in foster care has a case

plan designed to achieve safe, appropriate, and stable foster care

placements, 42 U.S.C. §§ 671(a)(16), 675(5)(A);

f. Maintain a case review system in which the status of each child in foster

care is reviewed every six months by a court, or person responsible for case

management, for purposes of determining the safety of the child, the

continuing necessity and appropriateness of the foster placement, the extent

of compliance with the permanency plan, and the projected date of

permanency, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675(5)(C);

g. Maintain a case review system that ensures that for each child in foster care

for 15 of the most recent 22 months, the responsible child welfare agency

files a petition to terminate the parental rights of the child’s parents and

concurrently identifies, recruits, processes, and approves a qualified family

for an adoption, or documents compelling reasons for determining that

filing such a petition would not be in the best interests of the child, 42 U.S.C.

§§ 671(a)(16), 675(5)(B), 675(5)(E); and

h. Provide to each child in foster care quality services to protect his or her

safety and health, 42 U.S.C. § 671(a)(22).

202. The American with Disabilities Act requires that DHS provide children who

experience physical, mental, intellectual or cognitive disabilities, necessary with an array of

community-based placements and services to ensure access to the least restrictive environment.

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42 U.S.C. § 12131(2), 29 U.S.C. § 794, and the respective implementing regulations; 42 U.S.C. § 622(b)(8)(A)(iii); 42 U.S.C. § 675(5)(A); ORS 419B.090 (2)(A)(a) and ORS 419B.090 (3).
203. The Oregon State Legislature has likewise committed itself to the fair treatment of

children and to provide for their needs by statute, including mandating a youth’s right to know

what is happening in their case planning process, the right to attend and to participate in hearings,

and the protection of the rights described by federal law. ORS 418.201.

204. Defendants have committed themselves to meeting the rights of foster children by

issuing a Foster Children’s Bill of Rights. ORS 418.202; OAR 413-010-0180.

205. The state of Oregon recognizes the rights of foster children to “be placed in the

least restrictive environment that appropriately meets individual needs,” to “be provided routine

and necessary medical, dental, and mental health care and treatment,” to “be protected from

physical and sexual abuse, emotional abuse, neglect, and exploitation,” to be reunified with their

families where possible and to “be provided services to develop a safe permanent alternative to the

family” when reunification is not possible. OAR 413-010-0180(1).

206. DHS staff must “[d]envelop[] and implement[] service plans and agreements that

address the needs, rights, and best interests of the child,” and “[a]dvocat[e] for the child’s rights

when family members, community institutions (such as school/law enforcement), or the

Department administrative practices appear to encroach upon the child’s rights.” OAR 413-010-

0210.

207. Each child must receive a monthly visit with DHS case worker staff, and the staffer

must determine if the child’s needs are being met, and determine if their needs have changed. OAR

413-020-0245(1); OAR 413-080-0054(1).

208. The State, through the Department of Human Services, has accepted responsibility

for the safety and well-being of all Oregon children who have been placed in foster care or who

are at risk of being placed in foster care.

///

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V. THERE ARE SYSTEMIC DEFICIENCIES IN OREGON’S CHILD WELFARE SYSTEM. A. Oregon Has Failed to Follow-Up on Necessary, Recommended Changes for Over a Decade 209. Oregon’s foster care system is so dysfunctional that Oregon cannot accurately track
how bad its services are. The 2018 Secretary of State’s audit described Oregon’s foster care records as: “unreliable for our audit purposes” due to “uncertain and untested data integrity and accuracy, incompleteness, data entry errors and poor quality data conversion… .” The Secretary of State noted that DHS management staff did not have confidence in its own data and that case workers were tracking their required visits by “handwritten notes on cubicle walls” instead of the state database. Oregon is more than likely performing far worse than data which the state utilizes actually suggests.
210. Nevertheless, a long series of reports and recommendations, including two periodic reviews from the Children’s Bureau of the Health and Human Services Administration, the federal agency which regularly audits state child welfare systems, has repeatedly found significant flaws and made serious recommendations for reform. These recommendations have been largely ignored for over a decade.
211. In 2008 the federal audit, the Child and Family Services Review (“CFSR”) found that children in Oregon were not in stable placements, that many children were placed in overcapacity homes and that children were still not receiving the permanency that federal law required. The state made commitments to improving the workforce, increasing the safety of children, and providing more resources. These recommendations have not been implemented.
212. In 2012, then Secretary of State Kate Brown, now Governor, issued a new audit. This report, too, included recommendations to improve the delivery of services to children, noting that the Department was only staffed to meet the needs of 68% of its caseload. These recommendations in the report were either not implemented or have been implemented in ways that were minimal and ineffectual.

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213. In 2016, following the Give Us This Day scandal, the Governor commissioned a study examining placement issues and the way that potential abuse in placements is investigated and responded to. In regard to placement issues the report included four recommendations and

findings: there are a lack of appropriate placements for children in foster care, the state’s capacity

for high needs children was shrinking, providers across a range of placement settings were not

getting the appropriate training, and the urgency to place children was compromising the

certification and licensing standards.

214. The report also recommended that efforts be made to: improve the DHS culture,

focus the whole DHS Agency and Child Welfare on safety, adopt data-driven decision making,

and increase staffing resources for Child Protective Services and other DHS entities. Despite the

widespread attention that the media brought to bear on congregate care and DHS, the key systemic

problems described in the report, such as the lack of case workers, insufficiency of placements,

and impermanency of children remain largely unchanged and have, in some cases, gotten worse.

215. In the 2016 federal audit conducted by the federal Children’s Bureau, the CFSR,

the state again did not achieve any of the “outcomes” relating to the permanency, safety and well-

being of children in care, and was in “substantial conformity” with just two of the systemic factors.

Notably, just 20% of children had “permanency and stability in their living situations.” “In more

than half of the applicable cases in which placement instability was identified, children were placed

with non-relative foster parents who may not have had the necessary skills to care for, or been

appropriately matched to, the children in their homes. Both DHS and stakeholders interviewed

attributed this, in part, to the lack of a foster-parent pool that reflects the needs and characteristics

of the children requiring placement. Due to this shortage of foster homes, placement decisions

appear to be driven, at times, by foster home availability rather than the needs of the child.”

216. Critically, the federal Children’s Bureau noted “practice concerns with making

face-to-face contact with alleged victims of child abuse and neglect during investigations, and with

conducting comprehensive assessments of risk and safety.” This also impacted permanency “in

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the vast majority of cases where a lack of agency and/or court concerted efforts to achieve permanency was noted, the contributing factors are either a lack of adequate needs assessment and service provision or the failure to complete administrative paperwork.”

217. “The lack of quality caseworker visitation is the primary factor driving areas

needing improvement across various practice areas, …[including] lack of comprehensive risk and

safety assessments, placement stability, engagement in case planning, assessing and meeting the

service needs of children and parents, and achievement of permanency.”

218. In the area of well-being, the agency “addressed the mental/behavioral health needs

of the children” in only 49% of applicable cases. For service array, the Children’s Bureau found:

“although most services are available throughout the state, they are not available to the extent, or

at times or the quality, required to meet the identified needs of children and families.”

219. In the Program Improvement Plan, issued after that federal review, the state made

a commitment to, once again, improve children’s safety, permanency, well-being and to improve

workforce development. The state has failed to follow up on those promises.

220. The subsequent 2018 Secretary of State audit also made various recommendations

to improve management in DHS and Child Welfare, to improve management of foster care and

recruitment and retention of foster parents, and to improve chronic understaffing, overwhelming

caseloads and high turnover.

221. The audit specifically found a persistent shortage of foster homes due to lack of

support and failure to recruit new foster parents.

222. The audit highlighted how the inadequate recruitment and retention of foster

parents negatively impacts SGM foster children due to the lack of appropriate SGM placements.

During the audit, Oregon’s SGM foster children reported the pain they experienced by being

placed in a home that treated their gender identity and sexual orientation as problems rather than

as important parts of their identity.

223. The audit stated that the state has no plan to recruit new foster families and no data

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on how many foster parents are needed. And once people become foster parents, the audit found that rather than receive support, the parents were frequently asked to take on work that should fall to caseworkers and called upon to accept “emergency” foster children who suddenly needed homes. Oregon has not addressed the issues identified in this audit.
224. A new audit issued recently issued in 2019 found after examining a random sample of foster care cases, that eligibility regulations weren’t always met, and, in some cases, home studies and background checks of new and continuing foster care providers either were not done at all or were incomplete.
B. Oregon Needs More Case Workers Who Are Adequately Supported and Trained to Meet the Needs of Children in Its Care
225. Child welfare research has clearly demonstrated that high caseworker caseloads negatively impact children in foster care. Specifically, caseworkers with high caseloads have less time to interact with children, families, and service providers or to provide meaningful and appropriate case plans, necessary services, and timely casework and decision-making. It is therefore critical that caseworkers have manageable caseloads. However, Oregon has failed for at least well over a decade to ensure that its caseworkers carry caseloads consistent with reasonable professional standards.
226. The Child Welfare League of America, a coalition of private and public agencies that develops child welfare policies and promotes sound child welfare practice, has established nationally recognized standards for caseworker caseloads. Those standards governing foster care caseworkers limit caseloads to between 12 and 15 children in foster care per worker.
227. As a direct and proximate result of Oregon’s failure to ensure that caseworkers maintain regular contact with children, parents, and foster parents, foster children have been and will continue to be harmed because their assigned caseworkers are unable to meaningfully assess their safety and well-being and to facilitate the provision of services that are necessary to reunite them with their parents or to place them into a safe, legally permanent home.

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228. Because most Oregon caseworkers are overburdened, it has alarmingly high caseworker turnover. Oregon’s high caseworker turnover exacerbates problems throughout its child protection system because Child Welfare is compelled to fill growing numbers of vacancies

with less qualified applicants, because caseworkers have less experience in the field, and because

of diminished caseworker continuity in particular cases. Research has shown that high caseworker

turnover is strongly correlated with children experiencing multiple placements, receiving fewer

services, staying in foster care longer, and failing to achieve permanency.

229. Ultimately, Oregon’s failure to ensure that caseworkers carry reasonable caseloads

and make sufficient contacts with the children in its custody substantially departs from widely

accepted professional standards and demonstrates a deliberate indifference to the risk of harm to

the children brought into care.

230. DHS’ Critical Incident Review Team reports issued over the last decade have

repeatedly identified high caseloads as a contributing factor in child maltreatment and fatalities.

Moreover, Oregon Annual Progress & Service Reports to the federal government have repeatedly

stated that required face-to-face contact with children and families have not occurred due to high

workloads.

231. In Service Employee International Union (“SEIU”) Local 503’s statewide survey

of child welfare employees at DHS in August 2016, 57% of respondents reported that their

caseloads were over the recommended limits set by the Council on Accreditation. Some

respondents reported nearly 28 cases, which was higher than the recommendation of “no more

than 15 children in foster care or kinship care, and no more than 8 children in treatment foster

care.” DHS employees noted that caseload burnout has led to staffing shortages, increasing the

burden among remaining caseworkers. New employees enter a system so strained that over 30%

of survey respondents admit receiving little to no training, basing the majority of their work on

observing experienced co-workers. Many offices reported an inefficient or complete lack of

oversight.

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232. The 2018 Secretary of State audit found that burnout had led to a 23% turnover rate
of child welfare staff in 2016, and that roughly one-third of staff had been on the job less than 18
months. Actual caseloads reported by caseworkers and district managers far exceeded the levels
used in a prior workload model study commissioned by Oregon. According to CPS workers in
Salem, they were assigned 21 investigations per month — more than three times the 6.85
investigations per month that the model supports. Permanency staff in Prineville reported having
to cover as many as 45 cases at one time when they were short on staff, nearly four times the
recommended 11.5 cases per worker, and permanency staff in Roseburg reported having roughly
20 cases each. Caseworkers who certify foster homes in Roseburg reported averaging 60 to 80
cases each, three to four times the 21.6 cases recommended in the workload model for certification
staff.3
233. Upon information and belief, currently approximately 70% of child welfare’s
current workforce have been on the job for less than 18 months.
234. DHS’ failure to ensure that caseworkers carry reasonable caseloads and make
sufficient contacts with the children in its custody substantially departs from widely accepted
professional standards and demonstrates a deliberate indifference to the risk of harm to Plaintiffs
and the class and sub-classes they represent.
C. DHS Has Inadequate Permanency Planning
1. Lack of Planning for Permanence in Foster Care 235. Oregon fails to ensure that children remain in foster care for as short a time period
as possible, contrary to the requirements of federal law.
3 This issue has been known for well over a decade. An expert review conducted in 2005 determined that Oregon needed to address the critical child welfare system workload. “Caseload sizes and supervisor-tocaseworker ratios exceed even outdated national standards and significantly compromise the safety response capacity.” A 2006 technical report similarly found that that escalating workload had stretched caseworkers and possibly produced poor performance. Significantly, in a workload study commissioned in 2008, Oregon’s caseworkers spent less time on direct client contact than any of the other states that recently implemented Child Welfare staffing studies. The time survey in the diagnostic showed that caseworkers spent most of their time on administration and supportive work.

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236. Many children in foster care fail to receive appropriate case plans that fully comply with the requirements for such plans. Further, children often do not receive necessary services that are required by their case plans, in part because defendants fail to either provide those services

directly or contract for those services. In addition, many caseworkers have inappropriately heavy

caseloads that preclude them from either developing appropriate case plans or ensuring that

necessary services are provided.

237. In the 2016 federal audit, the CFSR, the Children’s Bureau found that periodic

reviews and permanency hearings usually do occur in a timely manner, but these hearings often

do not contribute to the achievement of permanency for children in foster care: “in the vast majority

of cases where a lack of agency and/or court concerted efforts to achieve permanency was noted,

the contributing factors are either a lack of adequate needs assessment and service provision or the

failure to complete administrative paperwork.” The case review documented that “concerted

efforts” were being made towards achieving a permanency goal for children in only 41% of cases.

238. Visitation with family members is essential in case plans for a child’s well-being,

is fundamental to permanency, and is vital to a child maintaining family relationships and cultural

connections. However, upon information and belief due to lack of resources and planning, DHS

routinely defaults to one hour supervised visitation weekly or bi-weekly.

239. When children are ready to be returned home, visitation plans are not expanded in

a meaningful way, such as through graduated visitation plans in order to optimize the chances for

success in reunification.

240. Although federal law requires that case plans must be meaningful and that

necessary services must be provided, children often remain on waiting lists for services, accurate

and necessary information about children’s circumstances, medical and social history, and special

needs is withheld from foster parents, and biological parents are referred for services that exist in

such small numbers that they never become available within the limited timeframe the parents

have to comply with their case plans.

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241. Oregon’s failure to provide necessary services to children and parents substantially impedes reunification efforts because reunification often is not possible, legally and practically, in the absence of such services.

242. Children often are returned to the care of their parents even though the conditions

underlying the removal of the children have not been addressed.

243. Children who remain in foster care longer than 12 months often linger for years

without permanency. Adoption is appropriate for many of those children, but in 2016, 46% of

children waited 36 months or more for adoption, and children are left in a legal limbo. The large

percentage of children who remain in care without either being returned home or being moved

through the system toward adoption is well below the federal standard for permanency for children,

and is a violation of federal law.

244. Moreover, from January-December 2018, while 47% of children who were legally

freed for adoption were adopted within 12 months of the TPR, of the remaining 53% of children

(1% had other discharge), only 12% were in adoptive placements, resulting in 41% of children

who could be classified as “legal orphans,” potentially children growing up in foster care, the very

status the law was intended to obviate.

245. For older teens who may express the view that they do not want to be adopted, DHS

often fails to explore non-adoptive options that nevertheless would be conducive to the child’s

long-term stability, such as facilitating the child’s connection with a non-adoptive kinship resource

who will maintain a stable, long-term relationship with the child after he or she ages out of the

system.

246. DHS does not comply with requirements that it effectively plan for, and make

ongoing reasonable efforts to achieve, permanency for children who cannot be reunified with their

parents, failing to seek termination of parental rights within the time periods required by federal

law, and failing to seek and secure adoptive homes for children for whom they are appropriate.

2. Transition Planning and Discharge From Foster Care

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247. Youth are currently being placed while in foster care into homeless shelters. Others are being placed in unstable living situations which results in many ending up on the streets. Oregon foster children 16 year or older leaving foster care are disproportionately likely to exit the

system without reunifying with family members or creating a new bond to a permanent family:

71% in Oregon aged out, compared to 51% nationally in 2016.

248. WalletHub’s 2018 States with the Most Underprivileged Children report recently

indicated that Oregon ranks first in the nation for the rate of homeless children and youth. During

FY 2017, teens (13 years and older) comprised 27% of the foster care population in Oregon.

249. Case planning for adolescents is generally delegated to a variety of Independent

Living Providers with long waiting lists for services.

250. Adolescents in and aging out of foster care generally are those individuals least

prepared, and most lacking in the skills and resources necessary, to survive on their own and, not

surprisingly, those individuals fall far behind their non-foster care peers in education, employment,

health care, and housing. Studies have repeatedly highlighted poor outcomes related not only to

homelessness, but to pregnancy, incarceration and death.

a. Oregon Children Suffer From Maltreatment in Foster Care

251. The fact that Oregon has removed a child from an abusive or neglectful home does

not always mean that the child will then be safe. Oregon foster children are, all too often, subjected

to maltreatment while in foster care.

252. According to Oregon’s Annual Progress and Service Report submitted in 2017, the

national data indicator for maltreatment in foster care has a national standard of 8.5. This data

indicator measures the following: of all children in a foster care episode during a 12-month period,

what is the rate of victimization, per 100,000 days of care. The rate of maltreatment in Oregon

during the foster care episode from 2014-2016 showed a steady increase in the rate of maltreatment

from 14.6 to 18.5, peaking thereafter in the April 2016 - March 2017 data with a rate of 21.6.

253. The Secretary of State 2018 audit noted that, “[s]ince 2006, DHS has paid out $39

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million in legal settlements due to the agency’s inability to consistently keep children in their care safe from abuse and neglect. While some risk of exposure is expected within the Child Welfare program, the frequency and amount of these legal awards suggest a lack of strategic risk management within the agency and an unhealthy tolerance for serious risks to children.”
254. The high rate of maltreatment of children in DHS custody is a direct result of Defendants’ long-standing and well-documented actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued Oregon’s child protection system for years. Oregon’s failure to ensure that children are protected from maltreatment while in the custody and care of the DHS substantially departs from accepted professional judgment and norms and demonstrates a deliberate indifference to the risk of harm to Plaintiffs and the classes they represent.

VI. DHS PERFORMS INADEQUATE ASSESSMENTS AND CASE PLANNING 255. Before the foster care system can provide the services a child needs, it must know
what the child needs and create an individualized plan for delivering those services. 256. Oregon falls far below basic norms for timely assessing the needs of foster children.
Although Oregon does not effectively track this information on a statewide basis, its own data set in the 2016 CFSR report indicated only 44% of children received an evaluation for any emotional or behavioral health needs within 60 days of removal from the family home, and 37% of children in the dataset never had their needs assessed at all.
257. Children entering the foster care system should quickly receive a detailed case plan setting forth their needs for services, but only 26% actually received such a case plan in their first 60 days in the system, according to the federal audit.
258. Fewer than two of every three children in foster care had a completed, updated case plan, according to Oregon’s own review of 200 case files in 2016. One in four had no case plan at all.
259. Because of the perpetual crisis in finding placements, Oregon cannot meaningfully

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fulfill a case plan for many children. Instead, children in need of placement are matched with available beds, any bed, regardless of whether the placement is appropriate to the child’s needs. DHS courts disaster by sending children with complex needs from placement to placement, without any sense of what the child needs or how DHS plans to meet those needs.
260. While the resources of DHS, the number of case workers, and the number of placements all contribute to Oregon’s failures of its children, the lack of timely, appropriate assessment and case planning ensures that the limited resources Oregon makes available are not used well. VII. OREGON HAS AN INADEQUATE ARRAY OF APPROPRIATE FOSTER
PLACEMENTS 261. Oregon has not ensured that it has a sufficient number of available foster home and other community resources to handle the large number of children who are removed from their homes and placed in foster care. 262. This problem is specifically acute for children with disabilities, who have higher therapeutic needs, and for SGM youth. Because the Oregon Department of Human Services has not recruited and retained a sufficient number of foster homes, when it determines that a child should be removed from his or her home, it often places the child in a temporary placement. 263. Federal law and widely accepted professional standards require Oregon to ensure that each child in its custody is placed in the most appropriate, least restrictive placement available, consistent with the child’s needs. See 42 U.S.C. § 622(b)(8)(A)(iii); 42 U.S.C. § 675(5)(A). 264. Children who are diagnosed with physical, mental, intellectual, or cognitive disabilities often find their health conditions worsen while in foster care. Instead, these children must be provided necessary and appropriate services and treatment ensure equal access to a stable, family-like foster placement and for appropriate placements including in the least restrictive environment. 265. The abrupt removal of a child from their home can be overwhelming and often

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exacerbates the trauma caused by the abuse or neglect that warranted the child’s removal. 266. Oregon routinely fails to make sufficient efforts to ensure that children achieve
placement stability and many Oregon children shuffle through a large number of temporary placements, displaying increasingly difficult behavioral health needs which, in turn, makes it ever more difficult to find an appropriate placement for them.
267. This longstanding practice results in additional placements for children in foster care in Oregon, despite clear goals in the child welfare field to minimize the number of placements and moves that children experience. This systemic practice also relies indiscriminately on institutional care for children, despite extensive evidence and guidance in the child welfare field about the importance of minimizing institutional care for children as well as federal prohibitions on segregating people with disabilities away from their homes and communities.
268. Children placed in temporary placements often lose continuity of schooling, are often not placed with siblings, and often experience disruption of, or unavailability of, mental, medical, behavioral, and other health services they need.
269. Upon information and belief, Oregon’s foster care system is so overwhelmed, and there is such an acute shortage of adequate foster home placements, that in some instances DHS has placed children in hospitals for days when there was no medical reason for doing so. DHS has also lodged children in homeless shelters and refurbished delinquency facilities, refrained from removing children from known abusive or neglectful homes, temporarily housed children in overcrowded foster care homes, or placed children in inadequate and unlicensed child-specific kith or kin foster homes due to lack of availability of better, more integrated services and supports.
270. These significant failures in Oregon’s use of temporary foster care resources substantially depart from widely accepted professional standards, violate federal law prohibiting discrimination, and demonstrate a deliberate indifference to the risk of harm to the Plaintiffs and the classes.

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VIII. OREGON USES POORLY SUPERVISED OUT-OF-STATEMENT PLACEMENTS TO FILL THE GAP. 271. Almost simultaneously with the decrease in both regular and specialized
placements for children with disabilities in Oregon, the state has increased the number of foster children sent out of state to for-profit residential facilities. As of March 2018, Child Welfare had 50 children and children placed in residential programs in other states. As of March 2019, Oregon now has approximately 86 children placed out of state, in facilities in Arizona, Arkansas, Idaho, Illinois, Indiana, Iowa, Montana, Oklahoma, Pennsylvania, Tennessee, Utah, Washington and Wyoming.
272. Out of state for-profit facilities have repeatedly demonstrated ineffective management practices, lack of staff training, misuse of physical restraints and deceptive marketing practices, and federal and many local governments have called for enhanced oversight of those that deal with children with emotional disabilities.
273. Upon information and belief, many of these children have been sent out of state because they were determined to not meet the criteria for payment for higher levels of care by Oregon Coordinated Care Organizations. As a result, DHS has turned to out-of-state for-profit residential facilities that accept any child and is paying anywhere from $275 - $803 per day per child.
274. Oregon’s oversight of the children placed at these facilities is sporadic and limited. 275. The majority of the out-of-state residential placements operate under two umbrella organizations: Sequel Youth and Family Services and Acadia Healthcare. 276. Over a decade ago, Joey Jacobs was CEO at Psychiatric Solutions (PSI) where investors sued for fraud alleging that Jacobs had “downplayed the alarming incidents of abuse, neglect, and even death” at company facilities, ultimately winning a $65 million settlement. After selling PSI amidst regulatory investigations, Jacobs and five members of his management team from PSI joined Acadia, increasing it from a handful of centers into one of the country’s largest

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for-profit behavioral health providers through acquisitions and building new facilities. 277. In October 2018, two months before Jacob’s termination at Acadia, a research
analyst who covers Acadia, which is traded on Nasdaq, published a stock downgrade report based

on Acadia’s concealing widespread patient abuse and neglect that resulted from pervasive

understaffing at its facilities. According to the research analyst, “at Acadia, cutting staffing costs

to the bone is the ‘secret sauce’ used by management to inflate short term profits. Acadia’s

existence makes the world a worse place because its business model depends on acquiring new

facilities and then degrading care, a losing proposition that victimizes patients. We believe the

fundamental problem for investors is that Acadia’s slash and burn approach to behavioral

healthcare is inherently unsustainable and increasingly at risk of unraveling.” Currently, ten

children from Oregon are placed in Acadia facilities, including named Plaintiff, Unique.

278. Similarly, Sequel Youth & Family Services was previously known as Youth

Services International (YSI), a for-profit company that specialized in residential programs for

juvenile justice populations. Federal and local officials determined that youth placed in YSI

facilities were exposed to physical and sexual abuse. One of the co-founders of YSI is now the

founding stockholder, president, CFO and COO of Sequel. Seventy-six children from Oregon are

currently placed at Sequel facilities including the named Plaintiff, Ruth.

279. Notably, the State of Washington recently committed to stop placing children and

work to move children currently placed at Clarinda Academy in Iowa, following a report published

by Disability Rights Washington. Upon information and belief, at least five Oregon children are

placed at Clarinda Academy, which is run like a correctional facility and where documented abuses

have occurred. Clarinda Academy used to be a YSI facility before moving under the umbrella of

Sequel.

280. New Mexico issued a cease and desist ordering the facility Desert Hills to shut

down due to serious and multiple allegations against facility employees for assault, battery and

sexual contact. In February 2019, one Oregon child was placed there.

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281. In the year 2018 alone criminal investigations and charges for sexual abuse have been brought against employees at Northern Illinois Academy in Illinois, for which Oregon pays $803 per child per day, Norris Academy in Tennessee, for which Oregon pays $610 per child per day and Red Rock Canyon Academy in Utah, for which Oregon pays $330 per child per day. At least 30 Oregonian children are currently placed at these facilities.
282. As of February 22, 2019, the Tennessee Department of Child Services removed 18 of their own foster children, ages five to 17, from Kingston Academy, a Sequel facility, in Tennessee, while they investigated concerns. One Oregon child is placed there for which Oregon pays $450 per day.
283. These facilities are uniformly located far from any population centers. They are generally locked or secure facilities. Children are so distant from their families, friends, or other Oregon ties that maintaining those connections is virtually impossible for the detained youth.
284. Youth, during their time at these facilities, have no contact with the community outside of other detained children and staff. Meaningful integration with the community is impossible.
285. As of March 2019, there were 86 youth at various out-of-state placements who are in the custody of Oregon’s Department of Human Services (DHS). Each facility charges DHS a specified per diem rate. Based on data detailing the per diem rate for each of the 86 out-of-state residents, the average daily cost is $29,358. Extrapolating this data, the total monthly and annual costs associated with these placements are $880,736 and $10,568,826 respectively. By comparison, for similarly-profiled children based on age and therapeutic service needs, the state of Oregon pays a monthly rate of $2,385 or $2,4474 per child for foster care home placements. The monthly and annual total cost of foster home care placements for this child population of 86 are $210,442 and $2,525,304 respectively.
4 Age-specific Monthly Base Rate Payment + CANS Level of Care Payment for Level 3 (advanced needs) + Personal Care Services.

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IX. PLACEMENT INSTABILITY HARMS CHILDREN 286. It is agreed among behavioral therapists, policy makers, and child welfare
advocates that permanency is the most important factor affecting a foster child’s well-being. The negative implications of placement instability for permanency goals are compounded because each new placement delays permanency, and statistically, children experience more placements the longer they linger in foster care. Generally, children coming into foster care have already experienced trauma in their young lives. The separation from their families represents another new trauma with which to deal, and each subsequent placement move represents a new trauma. Studies show that children without any internalizing or externalizing behaviors in their first placement are likely to develop behavioral challenges if they are moved, given the additional trauma that accompanies each move, and has a severe negative impact on a child’s psychological, emotional, behavioral, social, cognitive, and mental health outcomes.
287. Placement instability poses a greater risk of harm toward young children due to the fragility of their developing brains. Neuroscientists have found that placement instability can fundamentally and permanently alter the functioning of key neural systems involved in learning, memory, and self-regulation. One study examining the performance in neuropsychological tasks of a group of preschool-aged foster children found that those with multiple placements performed poorly compared to those with stable placements.
288. Further, children who experience a lack of stability in early caregiving due to placement instability in foster care are at an increased risk for deficits in executive functioning abilities. Research has shown that executive functioning deficits in early childhood lead to poor academic achievement, a variety of behavioral health needs, and ADHD.
289. Placement stability also plays a critical role in the development of adolescent-aged foster children. Problems linked to a lack of placement stability in adolescent children include substance abuse, juvenile arrests, failing out of school, social network disruption, and mental health issues. Research shows that children who age out of foster care systems are more likely to

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experience negative life outcomes, such as pregnancy, incarceration and homelessness. Further, placement instability in adolescent children greatly inhibits academic achievement.
290. DHS subjects children in Oregon’s foster care system to the harm, and risk of harm,

of placement instability, and has long known the negative consequences of doing so, yet has failed

and refused to take action to address this issue.

a. DHS Routinely Fails to Obtain Timely Mental Health Services; Fails to

Follow up on Therapeutic Recommendations; and Fails to Ensure that

There is an Adequate Array of Mental Health Services Available to Foster

Children

291. Lack of placements is inextricably intertwined with mental health and related

cognitive and behavioral needs in Oregon because the children and adolescents who are

undergoing multiple placements generally have been exposed to trauma and the resulting

behavioral health issues. If they do not have behavioral health needs when they enter foster care,

children often develop these needs because of their experiences in foster care.

292. The American Academy of Pediatrics, Healthy Foster Care American Initiative,

identifies mental and behavioral health as the “greatest unmet heath need for children and teens in

foster care.”

293. The State of Oregon has effectively conceded the inadequacy of its efforts to obtain

appropriate mental health treatment for its foster children. A report co-authored by Oregon

Governor Kate Brown in September 2018 stated: “Currently, there are not adequate resources so

that children who require partial hospitalization, short-term psychiatric residential treatment

services, and subacute programs are able to access those settings at the right time, and at their level

of need.”

294. This lack of services is borne out by the 2016 CFSR, which found that obtaining

mental health treatment by DHS has been inadequate. The review found that the “current state of

therapeutic placement resources is poor” and that DHS “continues to struggle with accessing

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timely and quality Mental Health services for children for outpatient therapy with trained clinicians in the clinical issues of foster care, attachment, engagement and trauma.”
295. This lack of mental health resources is compounded by the fact that every time a child goes to a different foster parent in a different county a new agency affiliated with different providers may take over managing the child’s Medicaid insurance. Upon information and belief, this confusion frequently results in a delay or even denial of necessary care or discontinuation of prescribed medications. In addition, children in temporary placements do not receive appropriate mental health and medical assessments much less the resulting services.
296. The need for timely and appropriate therapeutic interventions cannot be underestimated given the prevalence of mental health conditions in the foster care population, such as adjustment disorder, ADHD, and PTSD.
297. Upon information and belief, there are numerous instances during the life of a foster care case where therapeutic interventions are missed or ignored by DHS, and a pattern in which DHS tends to advocate for care planning services, instead of following a clinician’s recommendations.
298. Oregon lacks adequate community-based support services that would enable children to either remain in their own homes or to be placed in community-based, family-like settings, such as family therapy, respite care, wrap-around services, and other supports appropriate to the emotional and behavioral needs of Oregon youth. The number of therapeutic family foster homes, with foster parents who have experience and training in dealing with emotional and behavioral needs, has diminished sharply.
299. All of these failures have been well known to defendants, and all of them constitute significant departures from reasonable professional standards and deliberate indifference to the substantial harm and risk of harm to the children in foster care in Oregon.

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CAUSES OF ACTION FIRST CAUSE OF ACTION 42 U.S.C. § 1983 - Substantive Due Process (On Behalf of the General Class and All Subclasses Against All Defendants) 300. Each of the foregoing allegations is incorporated as if fully set forth herein. 301. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to provide reasonable care, to and to protect from harm, a child with whom it has formed a special relationship, such as a child in foster care. 302. Moreover, a state assumes affirmative duties to provide reasonable efforts to obtain a permanent home and family derived from the First Amendment’s right of association and the Ninth Amendment’s reservation of rights to the people. 303. The foregoing actions and omissions of Defendants constitute a policy, pattern, practice, and/or custom that is inconsistent with the exercise of accepted professional judgment and amounts to deliberate indifference to the constitutionally protected liberty and privacy interests of all of the members of the general class. 304. Defendants are well aware of the policies and practices that prevent these class members from receiving adequate protection from harm after the State has formed a special relationship with them. 305. As a result, the named Plaintiffs and all of the members of the general class of children to whom the state owes a special duty, children in foster care, have been, and are, at risk of being deprived of substantive due process rights conferred upon them by the United States Constitution. 306. These substantive due process rights include, but are not limited to: a. the right to freedom from maltreatment while under the protective supervision of the State; b. the right to protection from unnecessary intrusions into the child’s

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emotional well-being once the State has established a special relationship with that child; c. the right to services necessary to prevent unreasonable risk of harm;

d. the right to conditions and duration of foster care reasonably related to the

purpose of government custody;

e. the right to treatment and care consistent with the purpose and assumptions

of government custody; and

f. the right not to be maintained in custody longer than is necessary to

accomplish the purpose to be served by taking a child into government

custody.

307. Moreover, the named Plaintiffs and all of the members of ADA, aging out and SGM

sub-classes have been, and are, at risk of being deprived of substantive due process rights conferred

upon them by the United States Constitution.

a. With respect to the ADA sub-class of children, the substantive due process

rights include, but are not limited to:

i.

The right to be free from discrimination by reason of disability;

ii.

The right to services in the most integrated setting appropriate to the

person’s needs;

iii.

The right to be free from unnecessary institutionalization and to be

placed in least restrictive setting; and

iv.

The right an ensure access to an array of community-based

placements and services to ensure access to the least restrictive

alternative.

b. With respect to the SGM sub-class of children, the substantive due process

rights include, but are not limited to:

i.

The right to freedom from bias-related violence, abuse and

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harassment while in state custody;

ii.

The right to freedom from systemic discrimination based on sexual

orientation, gender identity and gender expression;

iii.

The right to privacy regarding sexual orientation, gender identity

and gender expression;

iv.

The right to medically necessary gender-affirming medical and

psychological care;

v.

The right to culturally competent reproductive healthcare and sexual

health services, including HIV prevention and treatment; and

vi.

The right to be clothed and groomed consistent with one’s sexual

orientation, gender expression and gender identity.

c. With respect to the aging out sub-class of children, the substantive due

process rights include, but are not limited to:

i.

The right to independent living services to prepare to exit foster care

successfully including, but not limited to, vocational and other

educational services; money management, household maintenance,

transportation, legal issues, health, community resources, housing

options, personal hygiene, employment readiness, and educational

assistance;

ii.

The right to assistance to find lawful, suitable permanent housing

that will not result in homelessness upon exit from foster care; and

iii.

The right to a connection with an adult resource who will maintain

a stable, long-term relationship with the child after he or she ages

out of the system.

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SECOND CAUSE OF ACTION

42 U.S.C. § 1983 - The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq. (On Behalf of the General Class and All Sub-classes Against All Defendants) 308. Each of the foregoing allegations is incorporated as if fully set forth herein. 309. The foregoing actions and inactions of Defendants constitute a policy, pattern,
practice, and/or custom of depriving the named Plaintiffs and the classes they represent of the rights contained in the Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, to:
a. a written case plan that includes a plan to provide safe, appropriate and stable placements, 42 U.S.C. §§ 671(a)(16), 675(1)(A);
b. a written case plan that ensures that the child receives safe and proper care while in foster care and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
c. a written case plan that ensures provision of services to parents, children, and foster parents to facilitate reunification, or where that is not possible, the permanent placement of the child and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B); and
d. a case review system in which each child has a case plan designed to achieve safe and appropriate foster care placements in the least restrictive and most family-like setting, closest to their home community, 42 U.S.C. §§ 671(a)(16), 675(5)(A). THIRD CAUSE OF ACTION

42 U.S.C. § 12131 et seq. - Americans with Disabilities Act (“ADA”) (On Behalf of the ADA Sub-class Against All Defendants)
310. Each of the foregoing allegations is incorporated as if fully set forth herein.
311. Title II of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12132, and
its enabling regulations, 28 C.F.R. 35.101 et seq., prohibit discrimination against individuals with

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disabilities. 312. Plaintiffs have physical, mental, intellectual, or cognitive disabilities that qualify
them as individuals with disabilities within the meaning of the ADA, 42 U.S.C. § 12131(2). They

meet the essential eligibility requirements for the receipt of foster care services provided by DHS.

313. Defendants are public entities, or are public officials of a public entity, subject to

the provisions of the ADA. 42 U.S.C. § 12131(1)(A).

314. Title II of the ADA prohibits a public entity from excluding a person with a

disability from participating in, or denying the benefits of, the goods, services, programs and

activities of the entity or otherwise discriminating against a person on the basis of disability.

315. Under the regulations enforcing the ADA, the state may not “[p]rovide a qualified

individual with a disability with an aid, benefit, or service that is not as effective in affording equal

opportunity to obtain the same result, to gain the same benefit, or to reach the same level of

achievement as that provided to others. . . .” 28 C.F.R. § 35.130(b)(1)(iii).

316. Accordingly, DHS must provide children with disabilities an equal opportunity to

access foster care services as it provides to children without disabilities in its custody.

317. Moreover, defendants have an affirmative duty, to “make reasonable modifications

in policies, practices, or procedures when the modifications are necessary to avoid discrimination

on the basis of disability, unless the public entity can demonstrate that making the modifications

would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

§ 35.130(b)(7).

318. As set forth above, the regulatory hallmark and guiding force of disability law

requires the provision of services, including the child’s placement in the most integrated

environment appropriate to the youth’s needs. 28 C.F.R. § 35.130(d); Olmstead v. L.C., 527 US

581, 602 (1999).

319. As a result of the foregoing, named Plaintiffs and all members of the class have,

and are at risk of being, deprived of their statutory right to access additional mental health services

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to make them as able as their non-disabled peers to access a stable, family-like foster placement and for appropriate placement in the most integrated setting appropriate to their needs.
320. As a direct and proximate result of defendants’ violations of Title II of the ADA, plaintiffs have been or are at risk of being injured as set forth above and will continue to suffer injury until defendants are required to, and have, come into compliance with the requirements of the ADA.
FOURTH CAUSE OF ACTION

29 U.S.C. § 794 - Rehabilitation Act (“ADA”) 321. Each of the foregoing allegations is incorporated as if fully set forth herein. 322. Plaintiffs have physical, mental, intellectual, or cognitive disabilities that qualify them as individuals with disabilities within the meaning of the Rehabilitation Act. 29 U.S.C. § 794; 29 U.S.C. § 705(20). They meet the essential eligibility requirements for the receipt of foster care services provided by DHS. 323. DHS receives substantial federal funding to support its child welfare operations and thus must comply with the Rehabilitation Act. 29 U.S.C. § 794(b); 34 C.F.R. 104.51. The individually-named Defendants are all agents for the state of Oregon sued in their official capacities. Their respective agencies and offices all receive substantial federal funding. 324. Like the ADA, the Rehabilitation Act and its enabling regulations prohibit discrimination in the provision of services by any entity receiving federal funding. 29 U.S.C. § 794(a); 34 C.F.R. 104.4. 325. Like the ADA, the Rehabilitation Act also requires an “equal opportunity” for people with disabilities to benefit from the services of a public entity. 34 C.F.R. 104.4(b)(1)(ii) & (b)(2); 34 C.F.R. 104.52(a)(2). 326. Like the ADA, the Rehabilitation Act requires a federal funds recipient to provide services in the most integrated setting appropriate. 34 C.F.R. 104.4(b)(2). 327. Defendants, in actions and omissions described above, fail to give children with

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disabilities an equal opportunity to succeed in remaining in a family home, reunifying with their parents, finding a permanent home, receiving necessary health care, and receiving appropriate placement in the most integrated, community-based setting appropriate to their needs.

328. As a direct and proximate result of defendants’ violations of Rehabilitation Act,

Plaintiffs have been or are at risk of being injured as set forth above and will continue to suffer

injury until Defendants are required to, and have, come into compliance with the requirements of

the Rehabilitation Act.

WHEREFORE, the named Plaintiffs, on behalf of themselves and the classes,

respectfully request that this Court:

329. Order that this action may be maintained as a class action pursuant to Rule 23(b)(2)

of the Federal Rules of Civil Procedure;

330. Pursuant to Rule 57 of the Federal Rules of Civil Procedure, declare

unconstitutional and unlawful:

a. Defendants’ violation of Plaintiffs’ and class members’ right to be free from

harm under the Fourteenth Amendment to the United States Constitution;

b. Defendants’ violation of Plaintiffs’ and class members’ rights under the

First, Ninth, and Fourteenth Amendments to the United States Constitution;

c. Defendants’ violation of Plaintiffs’ and class members’ rights under the

Adoption Assistance and Child Welfare Action of 1980, as amended by the

Adoption and Safe Families Act of 1997, 42 U.S.C. § 670 et seq.; and

d. Defendants’ violation of Plaintiffs’ and class members’ rights under

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(2), Section

504 of the Rehabilitation Act (“Section 504” or “RA”), 29 U.S.C. § 794,

and the respective implementing regulations.

331. Permanently enjoin Defendants from subjecting Plaintiff Children to practices that

violate their rights, including:

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a. With regard to all children in the general class:

i.

Require DHS to contract with an appropriate outside entity to

complete a needs assessment of the state’s provision of foster care

placement and services no later than six months after judgement, to

determine the full range and number of appropriate foster care

placements and services for all children needing foster care

placement, including the development of a plan, with timetables,

within which such placements and services shall be secured, and

ensure that DHS shall comply with those timetables;

ii.

Require that DHS ensure that all children who enter foster care

placement receive within 30 days of entering care a complete and

thorough evaluation of the child’s needs, performed by a qualified

individual, including whether the child has any physical and/or

mental disabilities sufficient to be categorized as a child with

disabilities under the ADA and that the child be re-evaluated as the

child’s needs and the information available to DHS change;

iii.

Require that DHS ensure that all children who enter foster care

placement receive within 60 days of entering care an adequate and

individualized written case plan for treatment, services, and supports

to address the youth’s identified needs; describe a plan for

reunification with the child’s parents, for adoption, or for another

permanent, family-like setting; describing any interim placements

appropriate for the child while the child moves towards a permanent

home-like setting; and describing the steps needed to keep the child

safe during the child’s time in DHS’s custody.

iv.

Require that DHS shall ensure that all children whose case plan

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identifies a need for services and/or treatment timely receive those

services and/or treatment;

v.

Require that DHS shall ensure that all children who are placed in

foster care are placed in a safe home or facility and are adequately

monitored in accordance with federal standards;

vi.

Require that DHS shall hire, employ, and retain an adequate number

of qualified and appropriately trained caseworkers, and ensure that

caseloads do not exceed 15 children per-worker for children in

placement, with caseloads adjusted for caseworkers who carry

mixed caseloads including children not in foster care custody; and

vii.

Require DHS to develop an adequate statewide plan, to be approved

by the Monitor referred to below, for recruiting and retaining foster

and adoptive homes, including recruitment goals and timetables for

achieving those goals, with which DHS shall comply.

b. For all children in the ADA sub-class:

i.

Require that DHS shall ensure that all children with physical,

mental, intellectual, or cognitive disabilities shall receive foster care

services in the most integrated setting appropriate to the child’s

needs, including, in as many instances as is required by reasonable

professional standards, family foster homes with supportive

services;

ii.

Require that DHS ensure that an adequate array of community-

based therapeutic services are available to children with disabilities;

iii.

Require that DHS ensure that it develop an adequate array of

community-based therapeutic foster homes and therapeutic

placements to meet the needs of children with disabilities;

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iv.

Require that DHS shall report to the Monitor referred to below on

the placement type and the provision of services to all children who

are in the ADA sub-class.

c. For all children in the aging out sub-class:

i.

Require that DHS, when a child turns 14 years old while in its

custody and is not imminently likely to be reunified with family,

adopted, or otherwise placed in a permanent family-like setting,

engage in transition planning to meet the health care, educational,

employment, housing, and other social needs of the children in

transitioning to adulthood;

ii.

Require that DHS ensure that children be placed in foster family

homes whenever possible or, if the young person declines such a

placement, in an appropriate group home with appropriate,

necessary and individualized services;

iii.

Prohibit DHS from refusing to place a young person in a foster care

placement because the child is 14 or older.

iv.

Require that DHS report to the Monitor referred to below on all

children 14 and older, where the child is placed, and the type of

services the child is receiving; and

d. For all children in the SGM sub-class:

i.

Require that DHS shall ensure that all SGM children shall receive

foster care services that support and respect a child’s sexual

orientation, gender identity and gender expression;

ii.

Require that DHS shall ensure that SGM children are not placed in

placements where a child’s sexual and gender identity or expression

are viewed as immoral, undesirable, or problematic or where SGM

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children are subjected to regulation that does not apply to non-SGM

children;

iii.

Require that DHS shall ensure that an SGM child’s clothing,

personal care, hygiene, hairstyle, makeup, jewelry or other

accessories and grooming be consistent with the child’s gender

identity, gender expression and sexual orientation;

iv.

Require that DHS shall ensure that an SGM child’s name and

pronouns are used and respected, whether or not they conform to the

child’s assigned sex at birth or external anatomy, and that the child’s

wishes are honored with regard to the times and place in which the

foster child wishes to be addressed by that name and pronoun or in

another manner;

v.

Require that DHS shall ensure that the confidentiality of a child’s

gender identity, gender expression and sexual orientation are

maintained and not disclosed without the consent of the child or

when necessitated by an emergency;

vi.

Require DHS to develop guidance and identify, coordinate, and

support foster children seeking access to gender affirming health

care and gender affirming mental health care;

vii.

Require that DHS shall report to the Monitor referred to below on

the placement type and the provision of services to all children who

are in the SGM sub-class.

332. The Court shall appoint a neutral Monitor, paid for by the defendants, to monitor

the terms of this Order. The Monitor shall have access to all relevant documents and information

necessary and shall conduct record reviews as necessary to ensure compliance with its terms.

333. Award reasonable costs and expenses incurred in the prosecution of this action,

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including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and
334. Grant such other and further relief as the Court deems just, necessary, and proper to protect Plaintiffs and the class members from further harm.
DAVIS WRIGHT TREMAINE LLP

Dated: April 16, 2019

s/ Gregory A. Chaimov Gregory A. Chaimov, OSB #822180 gregorychaimov@dwt.com Paul C. Southwick, OSB #095141 paulsouthwick@dwt.com 1300 SW Fifth Avenue, Ste. 2400 Portland, OR 97201 Tel: (503) 241-2300 Fax: (503) 778-5299
A BETTER CHILDHOOD
Marcia Robinson Lowry (pro hac vice pending) mlowry@abetterchildhood.org Dawn J. Post (pro hac vice pending) dpost@abetterchildhood.org 355 Lexington Avenue, Floor 16 New York, NY 10017 Tel: (646) 795-4456 Fax: (212) 692-0415
DISABILITY RIGHTS OREGON
Emily Cooper, OSB # 182254 ecooper@droregon.org Thomas Stenson, OSB 152894 tstenson@droregon.org Christine Shank (admission pending) cshank@droregon.org 511 SW 10th Avenue, Suite 200 Portland OR 97205 Tel: (503) 243 2081 Fax: (503) 243 1738
Attorneys for Plaintiffs

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 Case 6:19-cv-00556-AA Document 31 Filed 07/25/19 Page 1 of 36
David B. Markowitz, OSB #742046 DavidMarkowitz@MarkowitzHerbold.com Laura Salerno Owens, OSB #076230 LauraSalerno@MarkowitzHerbold.com Anna M. Joyce, OSB #013112 AnnaJoyce@MarkowitzHerbold.com Harry B. Wilson, OSB #077214 HarryWilson@MarkowitzHerbold.com Lauren F. Blaesing, OSB #113305 LaurenBlaesing@MarkowitzHerbold.com MARKOWITZ HERBOLD PC 1211 SW Fifth Avenue, Suite 3000 Portland, OR 97204-3730 Tel: (503) 295-3085 Fax: (503) 323-9105
Special Assistant Attorneys General for Defendants Additional Counsel of Record Listed on Signature Page

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION

WYATT B. and NOAH F. by their next friend Michelle McAllister; KYLIE R. and ALEC R. by their next friend Kathleen Megill Strek; UNIQUE L. by her next friend Annette Smith; SIMON S. by his next friend Paul Aubry; RUTH T. by her next friend Michelle Bartov; BERNARD C. by his next friend Ksen Murry; NAOMI B. by her next friend Kathleen Megill Strek; and NORMAN N. by his next friend Tracy Gregg, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
KATE BROWN, Governor of Oregon in her official capacity; FAIRBORZ PAKSERESHT, Director, Oregon Department of Human Services in his official capacity; JANA MCLELLAN, Interim Director, Child Welfare in her official capacity; and OREGON DEPARTMENT OF HUMAN SERVICES,
Defendants.

No. 6:19-cv-00556-AA
DEFENDANTS’ MOTION TO DISMISS OR, IN THE
ALTERNATIVE, TO MAKE MORE DEFINITE AND CERTAIN
Pursuant to FRCP 12(b)(6), FRCP 12(e)
Request for Oral Argument

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TABLE OF CONTENTS

Page

CERTIFICATE OF COMPLIANCE .............................................................................................. 1

MOTIONS ...................................................................................................................................... 1

INTRODUCTION .......................................................................................................................... 1

FACTUAL BACKGROUND ......................................................................................................... 2

I. Oregon’s child welfare system............................................................................................ 2

II. The named plaintiffs ........................................................................................................... 4

III. The complaint’s allegations and requested relief................................................................ 5

IV. Audits and actions already underway in Oregon ................................................................ 5

LEGAL STANDARDS .................................................................................................................. 6

ARGUMENT .................................................................................................................................. 8

I. This Court should abstain from exercising jurisdiction under O’Shea v. Littleton. .............................................................................................................................. 8

A. Principles of comity and federalism require abstention from ongoing oversight of state proceedings................................................................................. 8

B. The relief requested squarely conflicts with O’Shea. ............................................. 9

1. The relief that the complaint seeks for the general class would require ongoing oversight of Oregon’s juvenile courts. ............................. 9

2. The relief that the complaint seeks for the subclasses would similarly require ongoing oversight of Oregon’s juvenile courts. ............ 10

C. Courts, including those in the Ninth Circuit, abstain in these circumstances. ....................................................................................................... 11

1. The Ninth Circuit and its district courts have abstained in cases seeking relief like that which the complaint here seeks............................ 12

2. Several other circuits have also abstained in cases seeking relief like that which the complaint here seeks. ................................................. 13

II. The complaint fails to state a claim for violation of the Due Process Clause. ................. 15

A. The Fourteenth Amendment requires the State to provide for foster children’s basic needs. .......................................................................................... 15

B. The complaint fails to state a claim for violation of substantive due process................................................................................................................... 16

C. In the alternative, this Court should order that the complaint be made more definite and certain. ..................................................................................... 19

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III. There is no private right of action to dictate the contents of a case plan under the Child Welfare Act. ...................................................................................................... 20 A. The complaint does not plead that plaintiffs have been denied a written case plan or case review system............................................................................ 20 B. There is no private right of action under the CWA to particular contents of or implementation of the case plan................................................................... 21 1. The CWA does not contain the words that plaintiffs use to assert a new right of action. ...................................................................... 22 2. The statute provides no guidance as to how a federal court should analyze the new private right of action. ........................................ 23
IV. The complaint fails to state a claim for relief under the ADA and Rehabilitation Act. ............................................................................................................ 24 A. Plaintiffs’ requested mental health treatment is not a reasonable accommodation required by the disability statutes. .............................................. 25 B. The State did not violate the disability statutes’ integration mandate by placing foster children in residential facilities and foster homes.......................... 26
CONCLUSION............................................................................................................................. 28
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Cases

TABLE OF AUTHORITIES

Page(s)

31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) .................................................................................. 13, 24

Alexander v. Choate, 469 U.S. 287 (1985).......................................................................................................... 26

Arc of Wash. State Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005) ............................................................................................ 27

Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................................. 6, 7, 19

Barricelli v. City of New York, No. 15 CV 5273-LTS-HBP, 2016 WL 4750178 (S.D.N.Y. Sept. 12, 2016).............. 23, 24

Belinda K. v. Cnty. of Alameda, No. 10-CV-05797-LHK, 2012 WL 1535232, at *5 (N.D. Cal. Apr. 30, 2012), aff’d sub nom. J.H. ex rel. Kirk v. Baldovinosre, 583 F. App’x 833 (9th Cir. 2014) ..................................................................................... 13

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)............................................................................................................ 7

Blessing v. Freestone, 520 U.S. 329 (1997).................................................................................................... 21, 22

Braam ex rel. Braam v. State, 150 Wn.2d 689 (2003) ...................................................................................................... 24

Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456 (D. Neb. 2007)......................................................................................... 24

Chapman v. Pier 1 Imports, 631 F.3d 939 (9th Cir. 2011) .............................................................................................. 7

Charlie H. v. Whitman, 83 F. Supp. 2d 476 (D.N.J. 2000) ................................................................... 17, 24, 26, 27

Clark K. v. Guinn, No. 2:06-CV-1068 RCJ-RJJ, 2007 WL 1435428 (D. Nev. May 14, 2007)...................... 17

Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142 (D. Mass. 2011) ............................................................................... 14

Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014) .............................................................................................. 9

Daniels v. Williams, 474 U.S. 327 (1986).......................................................................................................... 18

Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152 (9th Cir. 2012) ............................................................................................ 6

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DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189 (1989).................................................................................................... 15, 18
E.T. v. Cantil–Sakauye, 682 F.3d 1121 (9th Cir. 2012) .................................................................................... 12, 15
Eric L. By and Through Schierberl v. Bird, 848 F. Supp. 303 (D.N.H. 1994)....................................................................................... 17
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) .......................................................................................... 17
Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).......................................................................................................... 21
Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012) ...................................................................................... 20, 22
Hernandez v. Texas Dep’t of Protective & Regulatory Serv., 380 F.3d 872 (5th Cir. 2004) ............................................................................................ 16
Horne v. Flores, 557 U.S. 433 (2009).......................................................................................................... 15
J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999) ........................................................................................ 14
K.H. Through Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990) ............................................................................................ 17
K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013) .......................................................................................... 26
Laurie Q. v. Contra Costa Cnty., 304 F. Supp. 2d 1185 (N.D. Cal. 2004) ............................................................................ 12
Lipscomb v. Simmons, 962 F.2d 1374 (9th Cir. 1992) .......................................................................................... 15
Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) .......................................................................................... 12
M.B. by Eggemeyer v. Corsi, No. 2:17-CV-04102-NKL, 2018 WL 327767 (W.D. Mo. Jan. 8, 2018) .......................... 24
M.D. by Stukenberg v. Abbott, 907 F.3d 237 (5th Cir. 2018) ................................................................................ 16, 17, 18
M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 175 (D. Conn. 2008) ............................................................................... 27
McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ............................................................................................ 19
MGIC Indem. Corp. v. Weisman, 803 F.2d 500 (9th Cir. 1986) .............................................................................................. 6
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Miles v. Wesley, 801 F.3d 1060 (9th Cir. 2015) ............................................................................................ 8
O’Shea v. Littleton, 414 U.S. 488 (1974)................................................................................................... passim
Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543 (S.D. Miss. 2004)............................................................................. 24
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).......................................................................................................... 26
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981).............................................................................................................. 22
Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999).............................................................................................. 27
Sameer v. Right Moves 4 U, No. 1:17-CV-886 AWI-EPG, 2018 WL 1875536 (E.D. Cal. Apr. 19, 2018) .................. 19
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011 (9th Cir. 2010) .......................................................................................... 26
Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187 (9th Cir. 1987) .............................................................................................. 7
Suter v. Artist M., 503 U.S. 347 (1992).............................................................................................. 22, 23, 24
Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) .............................................................................................. 7
T.F. by Keller v. Hennepin Cnty., No. CV 17-1826 (PAM/BRT), 2018 WL 940621 (D. Minn. Feb. 16, 2018) .................. 24
Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833 (9th Cir. 2010) ............................................................................................ 15
Taylor By & Through Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) .......................................................................................... 16
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007)............................................................................................................ 7
Tinsley v. McKay, 156 F. Supp. 3d 1024 (D. Ariz. 2015) .............................................................................. 14
Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir. 2018), cert. den. sub nom. City of Newport Beach, Cal. v. Vos, No. 18-672, 2019 WL 2166407 (U.S. May 20, 2019) ...................................................... 24
Washington v. California Dep’t of Corr. & Rehab., No. CV 19-169-VAP (KK), 2019 WL 1206487 (C.D. Cal. Mar. 14, 2019) .................... 19
Youngberg v. Romeo, 457 U.S. 307 (1982).......................................................................................................... 16
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Younger v. Harris, 401 U.S. 37 (1971)........................................................................................................ 8, 12
Constitutional Provisions U.S. Const. amend. XIV ................................................................................................... 15, 17, 18 Statutes 28 C.F.R. 35.130(d) ................................................................................................................ 25, 27 29 U.S.C. § 794 (Rehabilitation Act).............................................................................. 1, 5, 24, 25 42 U.S.C. § 12132 (ADA) ..................................................................................................... passim 42 U.S.C. § 671 and § 675, Adoption Assistance and Child Welfare Act (CWA) ............... passim Cal. Welf. & Inst. Code § 362 (West)........................................................................................... 13 ORS 419B .............................................................................................................................. passim Rules F.R.E. 201 ....................................................................................................................................... 7 FRCP 12(b)(6) ............................................................................................................................ 1, 6 FRCP 12(e) ........................................................................................................................... 1, 7, 19
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CERTIFICATE OF COMPLIANCE

In compliance with Local Rule 7-1, the parties made a good faith effort through

telephone conferences to resolve the disputes that are the subject of these motions and have been

unable to do so.

MOTIONS

The State of Oregon, by and through its Department of Human Services (DHS), Fariborz Pakeresht, in his official capacity as Director of DHS, Jana McLellan in her official capacity as

Interim Director of Child Welfare at DHS, and Governor Kate Brown in her official capacity

(collectively, “the State”) respectfully submit the following FRCP 12 motions:

1. Motion to dismiss all claims for relief, based on O’Shea abstention under FRCP 12(b)(6);
2. Motion to dismiss the substantive due process claim for failure to state a claim pursuant to FRCP 12(b)(6) or, in the alternative, to make more definite and certain pursuant to FRCP 12(e) ;
3. Motion to dismiss the claim for violation of the Adoption Assistance and Child Welfare Act (“CWA”) for failure to state a claim pursuant to FRCP 12(b)(6);
4. Motion to dismiss the 29 U.S.C. § 794 (Rehabilitation Act) and 42 U.S.C.

§ 12132 (“ADA”) claims for failure to state a claim pursuant to FRCP 12(b)(6).

These motions are supported by the following memorandum of points and authorities, the

declaration of Anna M. Joyce, and the exhibits thereto. INTRODUCTION

The State shares plaintiffs’ interest in improving Oregon’s child welfare care system. Without question, it is a complex, challenging task. But for two separate, but related reasons, it

is a task that must be left to Oregon’s juvenile courts and state government. First, bedrock

principles of federalism and comity mandate that this Court abstain from ongoing oversight of

juvenile court proceedings. Second, the federal laws upon which plaintiffs premise their claims, including the Due Process Clause, provide few of the federal protections that the foster children here seek.

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In contrast, the State of Oregon and Governor Brown have the authority to guarantee real

protection for foster children and are working hard to overhaul the child welfare system. In

addition, Oregon state courts have the ability and expertise to validate and enforce the broader

rights and protections Oregon state law affords children in foster care. In light of those

principles, this Court should abstain from considering the complaint’s claims. Even if the claims

fall within this Court’s purview, the complaint contains legal deficiencies requiring either

dismissal or narrowing of the alleged claims. The State, therefore, asks this Court to dismiss the

complaint.

FACTUAL BACKGROUND

I. Oregon’s child welfare system

Because understanding the role of the juvenile court is critical to demonstrating why this

Court should abstain from considering this case, the State sets out the state regulatory framework

in some detail. Oregon’s child welfare system involves close collaboration between DHS and

the juvenile courts from the moment that a child comes into care. A juvenile court must hold a

hearing within 24 hours of a child being taken into DHS custody. ORS 419B.183. At that

hearing, the court must initially make findings whether DHS made reasonable efforts to prevent

or eliminate the need for removal of the child. ORS 419B.185. The juvenile court must also

find that placement out of the home is in the best interests of the child. Id.

Within 60 days after DHS files a petition alleging that a child is within the jurisdiction of

the juvenile court, the court must hold another hearing. ORS 419B.305. At that hearing, the

juvenile court must determine whether to make the child a ward of the court and commit the

child to the legal custody of DHS for placement and supervision. ORS 419B.328. Where the

court determines it is in the best interest of the child to be placed in the legal custody of DHS, the

court must make particular findings, including whether DHS made reasonable efforts to prevent

or eliminate the need for removal and that DHS has made diligent efforts to place the child. See

ORS 419B.337. In most cases, the court indicates a placement preference. Id. The court may

also order DHS to be the guardian of the child. ORS 419B.373.

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Once the juvenile court establishes jurisdiction and wardship, the juvenile court makes certain recommendations for DHS’s initial plan. ORS 419B.343(1). The court may specify the particular care, supervision, and services to be provided by DHS, and may make an order regarding visitation of the child’s parents or siblings. ORS 419B.337(2)(3). If, upon review of a placement or proposed placement, the court disagrees with DHS’s case-planning decision, the court may order a specific type of placement (such as with the child’s parents or relative, with a foster family, in a residential facility or group care). ORS 419B.349. If a child needs medical care or other special treatment by reason of a physical or mental condition, the juvenile court may indicate the general care it deems appropriate. ORS 419B.346.
Once DHS has created the plan for care or treatment of the child, it must provide a copy of the plan and timetable for its implementation to the juvenile court for review. Id. The court may also order specific examination or treatment, including specifying a hospital setting or mental health treatment program. DHS must implement these directives “in consultation with the court.” ORS 419B.352. In those instances, DHS must notify the court when DHS implements the plan and annually update the court on DHS’s progress. DHS must also notify the court of any revisions and provide additional progress reports at the court’s request. ORS 419B.346.
Authority over the placement, care, services, and treatment of children in foster care resides with the juvenile court. Once the court makes its recommendations as to the placement, care, services, and treatment provided to the child—and has received DHS’s plan to execute those recommendations—the court may direct a different placement. ORS 419B.349(1). Thereafter, the court exercises “continuing jurisdiction to protect the rights of the child[.]” Id. Every six months, DHS must file reports with the juvenile court containing specific information about the child, the agency’s efforts to return the child home, and a proposed timetable for permanent resolution of the child’s status. See generally ORS 419B.440-443. The juvenile court must hold a hearing on the agency’s report in most circumstances (e.g., where DHS seeks to change placement or return a child to their parents) and may hold a hearing in all others. ORS 419B.449(1). At that hearing, the juvenile court must make specific findings, including Page 3 - DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO
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why continued care is necessary, the expected timetable for permanency, the number of placements the child has had, schools attended, and the number of visits the child has had with caseworkers and family members and whether the frequency of these is in the child’s best interests. See ORS 419B.449(2), (3). At each stage of the case, the child is represented by a court-appointed attorney who can seek appropriate orders or findings from the juvenile court related to placement or other aspects of the child’s dependency status. ORS 419B.195.
Additionally, the juvenile court must conduct a permanency hearing at specified intervals and, once more, must make specific findings. ORS 419B.470, 476. At those hearings, the juvenile court reviews the child’s permanency plan, evaluates DHS’s efforts to advance that plan, and orders changes to the plan itself or to DHS’s execution of the plan based on the court’s findings and determinations. ORS 419B.476(2)(4)(e). If the child is 14 or older, the court must evaluate the child’s plan to transition to adulthood and the adequacy of services provided for the child to achieve that goal and, again, order changes as the court deems fit. ORS 419B.476(3)(4)(e). In short, the juvenile court is charged with evaluating the adequacy of—and ordering changes to—each child’s placement, permanency plan, medical and mental health treatment, and services provided during the entirety of the time a child is in DHS custody. II. The named plaintiffs
Plaintiffs are ten children in Oregon’s foster care system. The complaint alleges that each has suffered physical, mental, emotional, and/or sexual abuse and neglect at the hands of their primary caretakers, necessitating their placement in foster care. (E.g., Complaint (“Compl.”) (Dkt. 1) ¶¶ 48, 67, 75, 95, 111, 128, 153-54.) Many of them further allege that they have suffered significant trauma and experience behavioral issues as a result of their experiences. (Id. ¶¶ 60-61, 68, 82, 86, 114, 132, 184.) And the complaint alleges that several plaintiffs have extreme behavioral issues that have resulted in placements in facilities that serve high-needs children and, in several cases, facilities that are out-of-state. (Id. ¶¶ 72, 85-88, 102, 122-23, 165, 194-95.)
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III. The complaint’s allegations and requested relief The complaint alleges four claims for relief on behalf of all Oregon foster children,
including three sub-classes (children with disabilities; youth who are transitioning into adulthood; and LGBTQ children): (1) violation of substantive due process by exposing foster children to unreasonable risks of harm through deliberate indifference; (2) violation of the CWA by failing to provide foster children with written plans and a case review system; (3) violation of the ADA by failing to provide children with disabilities an equal opportunity to access foster care services, including placement in the most integrated environment appropriate for the child’s needs; and (4) violation of the Rehabilitation Act based on same theory as the ADA claim.
The complaint seeks relief directing DHS to (1) contract with an outside entity to complete needs assessment of foster care system and develop corrective plan; (2) provide written child-specific case plans and monitor compliance with same; (3) hire, train, and retain more qualified caseworkers; (4) reduce caseloads; (5) provide additional services to children with disabilities so they can be placed in the most integrated setting; (6) provide planning services to foster children transitioning to adulthood; and (7) ensure that all LGBTQ children receive placement and care that supports their sexual orientation and gender identity. In addition, plaintiffs request DHS to employ a third-party monitor to oversee the foregoing. IV. Audits and actions already underway in Oregon
As plaintiffs themselves acknowledge, Oregon’s state government is actively working to address those system challenges and improve outcomes for all Oregon foster children. The Oregon Secretary of State conducted an audit in 2018. (Compl. ¶ 209.) That audit made various recommendations to improve management within DHS, improve management of foster care (including recruitment and retention of foster parents), and address understaffing and high caseloads. (Id. ¶¶ 220-223.)
In response to the audit, DHS prepared a response, agreeing with the Secretary of State’s recommendations. (Jan. 2018 Audit, attached to Decl. of Anna Joyce in Supp. of Mot. to
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Dismiss (“Joyce Decl.”) as Ex. 1.)1 DHS described the steps that it would take to implement the

recommendations and improve the child welfare system. (Id. at pp. 64-85.) The Secretary of State completed a follow-up audit in 2019.2 (June 2019 Audit, attached

to Joyce Decl. as Ex. 2.) The follow-up audit concluded that DHS “made progress on all 24

recommendations from the original audit, fully implementing eight.” (Id. at p. 2.)

Governor Brown has also acted to address specific gaps in the foster care system. On

April 18, 2019, she issued Executive Order No. 19-03. (4/18/2019 Executive Order, attached to

Joyce Decl. as Ex. 3.) In that order, Governor Brown acknowledged that the Child Welfare

Program is understaffed, that the most suitable available placement for 80 high-needs youth was

at facilities outside of Oregon, and that there are not enough foster home placements in Oregon.

She ordered the creation of a Child Welfare Oversight Board (“Board”) to serve as an advisor to

the Governor on DHS’s Child Welfare Program. (Id. at p. 1.) Governor Brown further ordered

creation of a management team to implement her directives, directives that will be based on the

Board’s recommendations. Together, the management team and Board will make and implement

recommendations at DHS related to: (1) out-of-state foster care placements; (2) building capacity

for both therapeutic and general foster care; (3) developing adequate in-home capacity for

children of color and with intellectual and developmental disabilities, and for LGBTQ+ youth;

and (4) developing recommendations to address workforce challenges in providing services to

foster children. (Id. at p. 2.)

LEGAL STANDARDS

A claim must be dismissed when it “fail[s] to state a claim upon which relief can be

granted.” FRCP 12(b)(6). The facts alleged in the complaint must amount to a claim for relief

“that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atl.

1 In deciding a motion to dismiss, “courts may take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff’s pleading.” Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (alterations, citation, and quotation omitted).
2 On a motion to dismiss, a court may take judicial notice of matters of public record outside the pleadings. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
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Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible on its face only if it contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint must be dismissed if the factual allegations allow only “a sheer possibility that the defendant has acted unlawfully.” Id. When a court considers a motion to dismiss, the court construes all allegations of the complaint in the plaintiff’s favor. Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 191 (9th Cir. 1987).
To assess the adequacy of a complaint, a court must begin by identifying those pleadings that are no more than legal conclusions, and thus are not entitled to the assumption of truth. Ashcroft, 556 U.S. at 678-79 (holding that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”); Chapman v. Pier 1 Imports, 631 F.3d 939, 955 n. 9 (9th Cir. 2011) (explaining “allegation that the barriers at the Store ‘denied him full and equal enjoyment’ is precisely the ‘formulaic recitation’ of the elements of a claim that the Supreme Court has deemed insufficient” and that to “sufficiently allege standing, [a plaintiff] must do more than offer ‘labels and conclusions’ that parrot the language of the ADA”).
Further, while all factual allegations in a pleading subject to a motion to dismiss for failure to state a claim are generally assumed to be true, the Court need not consider facts that are contradicted by information that is judicially noticeable under F.R.E. 201(b) or by documents whose contents are cited in the complaint but which are not physically attached to the pleading. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Such consideration does not convert the motion to dismiss into a motion for summary judgment. Id.
Finally, a party should be made to provide “a more definite statement of a pleading” where the pleading “is so vague or ambiguous that the party cannot reasonably prepare a response.” FRCP 12(e).
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ARGUMENT

I. This Court should abstain from exercising jurisdiction under O’Shea v. Littleton.

Plaintiffs’ requested relief invites this Court to replace Oregon’s democratically elected state government with out-of-state advocates and consultants, and to substitute a paid private entity’s decisions for the judgments of Oregon’s sworn judicial officers. If authorized by the federal court, this intrusion would violate a basic principle of federalism. The United States Supreme Court has rejected similar intrusions for half a century, and this Court should do the

same. A.

Principles of comity and federalism require abstention from ongoing oversight of state proceedings.

The Supreme Court has “repeatedly recognized a ‘longstanding public policy against federal court interference with state court proceedings’ based on principles of federalism and comity.” Miles v. Wesley, 801 F.3d 1060, 1063 (9th Cir. 2015) (quoting Younger v. Harris, 401 U.S. 37, 43 (1971)). In O’Shea v. Littleton, the Supreme Court held that those principles apply with full force to system-wide state court proceedings, rather than simply an ongoing proceeding that directly affects the plaintiffs. O’Shea v. Littleton, 414 U.S. 488, 499 (1974) . The O’Shea plaintiffs alleged that state criminal defendants who were racial minorities were treated differently than white defendants. The Court first noted that the plaintiffs were not

challenging the constitutionality of the state laws underlying the state proceedings, but rather

seeking “an injunction aimed at controlling or preventing the occurrence of specific events that

might take place in the course of” the state proceedings. Id. at 500. Such an order “would contemplate interruption of state proceedings to adjudicate assertions of noncompliance [in federal court].” Id. The Court concluded that this type of monitoring amounts to “nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger . . . sought to prevent.” Id. Accordingly, the abstention analysis hinges on the relief sought: “O’Shea compels abstention where the plaintiff seeks an ‘ongoing federal audit’ of the state judiciary, whether in criminal proceedings or in other

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respects.” Courthouse News Serv. v. Planet, 750 F.3d 776, 790 (9th Cir. 2014) (quoting O’Shea, 414 U.S. at 499) (emphasis added).
B. The relief requested squarely conflicts with O’Shea. There can be no doubt that the relief sought here demands exactly the type of intrusive action that O’Shea prohibits. Just as in O’Shea, plaintiffs do not challenge the constitutionality of the Oregon law under which juvenile courts operate, but rather seek an injunction “aimed at controlling, preventing, or mandating the occurrence of specific events that might take place” within the province of Oregon’s juvenile courts. O’Shea, 414 U.S. at 500. As explained below, the relief requested in the complaint squarely contradicts the Supreme Court’s edict.
1. The relief that the complaint seeks for the general class would require ongoing oversight of Oregon’s juvenile courts.
The complaint calls for federal court oversight of numerous matters that are within the jurisdiction of the juvenile court. For example, the complaint seeks an injunction that would require DHS to create “an individualized written case plan for treatment, services, and supports,” which contains “a plan for reunification with the child’s parents, for adoption, or for another permanent, family-like setting” for each member of the general class. (Compl. ¶ 331.a.iii.) This “case plan” is not intended for submission to the juvenile court. Rather, this requested relief bypasses the state juvenile court in favor of the federal court-appointed monitor’s evaluation of the “case plan” for adequacy, and the adequacy of DHS’s steps to effectuate the plan. This would be separate and independent from the juvenile court’s simultaneous, ongoing review (and modification as appropriate) of the permanency, treatment, and case plans that DHS prepares and effectuates, under the supervision of the juvenile court, pursuant to the CWA and various provisions of Oregon law. Similarly, the requested injunction would mandate DHS to “contract with an appropriate outside entity to conduct a needs assessment of the state’s provision of foster care placement and services . . . to determine the full range and number of appropriate foster care placements and services for all children.” (Id. ¶ 331.a.i.) This assessment requires an “outside entity”—in addition to the requested monitor and the federal court’s supervision of
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compliance—to assess and evaluate the propriety of placements already ordered by the juvenile court as well as those the juvenile court has yet to make.
But this is precisely the role of the juvenile court. Under Oregon law, the juvenile court exercises complete authority to review placement decisions affecting children in DHS custody. ORS 419B.349, 449(1). Moreover, the juvenile court must regularly review and approve a child’s plan for reunification, for adoption, or other permanency, as well as order, review, and modify plans for treatment, services, and supports, and finally, evaluate DHS’s efforts to effectuate those plans. ORS 419B.440-443, 449. The only way to implement the complaint’s requested relief would require the federal court to do exactly what O’Shea prohibits: “exercise control” over the events occurring in juvenile court.
2. The relief that the complaint seeks for the subclasses would similarly require ongoing oversight of Oregon’s juvenile courts.
The requested relief for the purported “ADA subclass” and “SGM subclass” similarly addresses issues squarely within the juvenile court’s authority. For the purported “ADA subclass,” the complaint demands that children with mental health disabilities be placed in the most integrative setting possible, namely, family foster homes with supportive services and appropriate community-based therapeutic services, all to be judged by the federal monitor. (Compl. ¶ 331.b.) This again, falls within the role of the judges of the juvenile court. Moreover, the juvenile court can determine the type of treatment that a child receives, evaluate DHS’s plan to provide the treatment, and monitor progress as well as any revisions to the plan. ORS 419B.346. Finally, the court may direct DHS to conduct a mental health exam and provide mental health treatment and services. ORS 419B.352. In that event, DHS must consult with the court to determine the appropriate placement for a child needing mental health treatment and services, with the court having the final say in the event of a disagreement. (Id.) Similarly, the relief requested for the purported “SGM subclass” requires placement of LGBTQ youth in specific family settings with specific types of families and specific services provided. (See id. ¶ 331.d.) Such decisions are precisely within the juvenile court’s authority to oversee placement decisions and plans for services.
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The jurisdiction of Oregon juvenile courts also encompasses the relief that the complaint seeks for the purported “aging-out subclass.” The contemplated injunction would require DHS to make a specific type of placement decision relating to these class members, and to engage in transition planning, facilitating their transition to adulthood, also under federal monitor supervision and review. Once again, the juvenile court reviews and exercises oversight on all placements, including for children who are 14 and over. Moreover, the law specifically charges the juvenile court with overseeing “the comprehensive plan for the ward’s transition to successful adulthood,” including evaluating whether the plan is “adequate to ensure the ward’s transition to successful adulthood” and whether DHS has “offered appropriate services pursuant to the plan.” ORS 419B.476(3).
At its core, the complaint demands that this Court ignore and directly override the system that the Oregon legislature created—and that state court judges enforce—in favor of a federal overlay with requirements chosen by a national non-profit corporation and enforced by an unelected, unsworn monitor. In practice, this means that, as the child’s plan is being reviewed, modified, and approved by the juvenile court, the monitor will be simultaneously reviewing, modifying, and approving the plan for compliance with the requirements listed in the complaint. The juvenile court will make decisions relating to the placement of a child, the provision of treatment and services, and planning for the child’s permanency, which could very well conflict with subjective preference or interpretations of the national monitor, who will be following criteria in the complaint rather than those set forth in Oregon law. This kind of “interference . . . by means of continuous or piecemeal interruptions of the state proceedings . . . [disrupts] the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” O’Shea, 414 U.S. at 500 (internal citations omitted).
C. Courts, including those in the Ninth Circuit, abstain in these circumstances. The Ninth Circuit, as well as several other circuit courts, has repeatedly recognized that the type of intrusive relief that the complaint seeks—particularly in the uniquely sensitive area of child welfare—contradicts O’Shea and must be rejected.
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1. The Ninth Circuit and its district courts have abstained in cases seeking relief like that which the complaint here seeks.
In a challenge to aspects of the California foster system, the Ninth Circuit considered a request for a reduction in caseloads for juvenile court judges and court-appointed attorneys. E.T. v. Cantil–Sakauye, 682 F.3d 1121 (9th Cir. 2012). The plaintiffs contended that the overworked courts and attorneys prevented abused and neglected children from receiving due process, their right to counsel, or a thorough consideration of their cases. The Ninth Circuit abstained under O’Shea, recognizing that “potential remediation might involve examination of the administration of a substantial number of individual cases.” Id. at 1124. Any such oversight of the state juvenile court “would inevitably set up the precise basis for future intervention condemned in O’Shea.” Id. (quoting Luckey v. Miller, 976 F.2d 673, 679 (11th Cir. 1992)). Specifically, “Defendants’ compliance with [plaintiff’s requested remedy] and its effect in individual cases could be subject to further challenges in federal district court.” Id. at 1125.
So too, here. Plaintiffs seek specific requirements for placement decisions, direct services, permanency plans, medical treatment plans, and transition plans, all of which would be subject to the federally appointed monitor’s review and this court’s continuing jurisdiction. Each and every aspect of this relief is part of the juvenile court’s ongoing decision process; meaning that, contrary to Supreme Court and Ninth Circuit precedent, this Court would be in the position of directly overseeing Oregon juvenile court decisions.
In a markedly similar case, a California district court abstained from intervening in the state foster system under the principles of Younger and O’Shea. Laurie Q. v. Contra Costa Cnty., 304 F. Supp. 2d 1185, 1203 (N.D. Cal. 2004). The plaintiffs, special needs foster children, alleged that the county failed “to adequately provide for their welfare through the proper management of their case plans.” Id. at 1204. The court acknowledged that, even though a separate administrative panel held some authority over children’s cases, the California juvenile courts exercise continuing jurisdiction over the children, holding periodic hearings, monitoring compliance with case plans, and retaining “ultimate authority” over case plans. Id. at 1203. As a result, any injunction involving case plans would place the federal court in the position of “final
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arbiter, approving or disapproving of the Juvenile Court’s review of plaintiffs’ case plans under [California law].” Id. at 1204. As a result, the California district court abstained from considering the general class claims seeking injunctive relief.
The same logic applies here. Oregon courts retain the same broad and continuing authority over case plans. Indeed, Oregon juvenile courts do not share that authority with an administrative panel and appear to be even more involved in medical treatment and placement decisions of children with special needs. Compare Cal. Welf. & Inst. Code § 362 (West) with ORS 419B.346, 352. Because there is no practical way to effectuate the complaint’s requested relief without engaging in ongoing oversight of the juvenile court’s decisions, this Court must abstain from entering the province of the juvenile court. See Belinda K. v. Cnty. of Alameda, No. 10-CV-05797-LHK, 2012 WL 1535232, at *5 (N.D. Cal. Apr. 30, 2012), aff’d sub nom. J.H. ex rel. Kirk v. Baldovinosre, 583 F. App’x 833 (9th Cir. 2014) (any injunction to provide additional resources to the underfunded juvenile courts would “require an ongoing audit of court administration and would violate the principles set forth in O’Shea”).
2. Several other circuits have also abstained in cases seeking relief like that which the complaint here seeks.
In addition to the Ninth Circuit, several other circuits have declined to interfere with state foster systems and juvenile court proceedings under O’Shea. In a similar challenge to Florida’s foster care system, the Eleventh Circuit was compelled to abstain as the requested relief—which included enjoining inadequate or unsafe child placements—touched matters directly within the review of state juvenile courts. 31 Foster Children v. Bush, 329 F.3d 1255, 1281 (11th Cir. 2003). The court recognized that, like Oregon, Florida vests final authority in placement decisions and case plans in the state juvenile courts. Id. at 1277. Granting plaintiffs’ requested relief would place “decisions that are now in the hands of the state courts under the direction of the federal district court.” Id. at 1278. In that event, “the federal and state courts could well differ, issuing conflicting orders about what is best for a particular plaintiff, such as whether a particular placement is safe or appropriate or whether sufficient efforts are being made to find an
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adoptive family.” Id. Such relief would, “[t]o say the least,” amount to “federal court oversight of state court operations.” Id. at 1279 (internal quote and citation omitted).
There is no meaningful difference in either the relief sought here or the function of Oregon and Florida courts. This situation presents precisely the same affront to federalism. If this Court grants the requested relief, a federal court-appointed monitor may approve a plan that the Oregon juvenile court does not, and vice versa. As multiple courts have recognized, O’Shea mandates abstention in these circumstances. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999) (abstaining where the requested relief would give the federal district court an oversight role over the entire state program for children with disabilities and would give it control over decisions then in the hands of the New Mexico Children’s Court, such as whether to return a child to his parents or whether to modify a treatment plan).
In the handful of foster care cases where district courts have accepted adjudication of the claims instead of abstaining under O’Shea, the relief sought did not fall within the scope of those states’ juvenile court mandates. For example, in Tinsley v. McKay, Arizona foster children plaintiffs sought relief that would essentially require the state agency to comply with juvenile court orders. 156 F. Supp. 3d 1024, 1036 (D. Ariz. 2015). The district court recognized that the relief sought did not intrude upon “the juvenile courts’ power over placements, visitation, and health services” and that juvenile courts “are not involved in adjudicating and remedying the types of claims raised here.” Id. at 1043. Because “the relief Plaintiffs seek is not aimed at a core competency of the juvenile court,” abstention was not warranted. Id. at n. 19. Here, however, the complaint seeks relief relating to the oversight of case plans, placements, services, and treatment, the quintessential “core competency” of Oregon juvenile courts. See also Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142, 154 (D. Mass. 2011) (unlike Oregon law, Massachusetts juvenile courts “play a minimal role in exercising the state’s care and protection policy. The real locus of decision making is within [the state agency]”) (internal quote and citation omitted).
Finally, federal courts have repeatedly applied O’Shea abstention in sensitive areas of state interest (like child welfare), finding abstention especially appropriate for “institutional Page 14 - DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO
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reform injunctions” that raise “sensitive federalism concerns.” See E.T., 682 F.3d at 1124 (citing Horne v. Flores, 557 U.S. 433 (2009)). Appointing a federal court monitor to oversee the treatment of Oregon foster children in compliance with a federal court’s decrees would rob juvenile courts of their authority in an area that has deep importance for the state of Oregon—the welfare of its children. Accordingly, O’Shea mandates that this Court abstain from considering the complaint’s requested relief. II. The complaint fails to state a claim for violation of the Due Process Clause.
Even without the basis for federal abstention, the complaint fails on its merits as well. The complaint accurately articulates the standard for a substantive due process claim, but fails to confront its limitations: the claims for relief far exceed the limited protection that substantive due process guarantees. The State endeavors, as a matter of sound social policy, to provide Oregon’s foster children with many of the conditions and improvements that the complaint seeks. DHS and Governor Brown have already committed to addressing many of the issues set out in the complaint. But the question whether good social policy compels a particular action is a wholly different question from whether the State is constitutionally required to take that action and be subject to ongoing federal court supervision. That is not the law. This Court should therefore dismiss the claims that exceed the bounds of the Due Process Clause.
A. The Fourteenth Amendment requires the State to provide for foster children’s basic needs.
The Ninth Circuit has circumscribed the contours of what substantive due process requires the State to provide for foster children. More specifically, the Fourteenth Amendment requires that the State provide for foster children’s “basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety[.]” Lipscomb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992) (quoting DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 196 (1989)). Those “basic human needs” require “minimally adequate care and treatment appropriate to the age and circumstances of the child.” Id.; Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010). To satisfy that duty, the State must provide children in its custody “personal security and reasonably safe living conditions” free from an unreasonable
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risk of both physical and psychological harm. Hernandez v. Texas Dep’t of Protective & Regulatory Serv., 380 F.3d 872, 880 (5th Cir. 2004); Taylor By & Through Walker v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987) (citing Youngberg v. Romeo, 457 U.S. 307, 320 (1982)). The Fourteenth Amendment does not entitle foster children “to receive optimal treatment and services, nor does it afford them the right to be free from any and all psychological harm at the hands of the State.” M.D. by Stukenberg v. Abbott, 907 F.3d 237, 251 (5th Cir. 2018).
As described below, much of what the complaint alleges goes far beyond the narrow substantive due process entitlement to “basic human needs” and therefore fails to state a claim.
B. The complaint fails to state a claim for violation of substantive due process. The complaint alleges a range of substantive due process rights, including the right to:
• Freedom from the foreseeable risk of physical, mental, and emotional harms (Compl. ¶ 200.a.);
• Necessary care to ensure physical, mental, intellectual, and emotional well-being in the least restrictive environment (id. ¶ 200.b.);
• Not be maintained in custody longer than is necessary to accomplish the purpose of custody (id. ¶ 200.d., ¶ 306.f.);
• Reasonable efforts to obtain a permanent home within a reasonable period of time (id. ¶ 200.e.);
• Services necessary to prevent unreasonable risk of harm (id. ¶ 306.c.); • Conditions and duration of foster care that is reasonably related to the purpose of
government custody (id. ¶ 306.d.); • Services in the most integrated setting (id. ¶ 307.a.ii.); • Access to an array of community-based placements and services to ensure access
to the least restrictive alternative (id. ¶ 307.a.iv.); • Independent living services to prepare to exit foster care successfully (id.
¶ 307.c.i.);
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• Assistance to find lawful, suitable permanent housing that will not result in homelessness (id. ¶ 307.c.ii.); and
• Connection with an adult resource who will maintain a stable, long-term relationship with the child after she/he/they ages out of the system (id. ¶ 307.c.iii.).
Those allegations may reflect practices and care that will improve foster children’s wellbeing, but they do not reflect the limited and circumscribed requirements of the Fourteenth Amendment. M.D., 907 F.3d at 272 (observing that while the plaintiffs’ allegations may reflect the “best practices” of the child-welfare community, the allegations go “far beyond what [is] minimally required to comport with the Constitution’s” prohibition on deprivation of substantive due process rights) (quoting Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)). Each of the complaint’s allegations must be measured against the “minimally adequate care” standard requiring the state to provide for foster children’s “basic human needs.” Id.
That standard has led multiple courts to reject claims similar to those in the complaint here. For instance, several courts have concluded that substantive due process does not guarantee placement stability or the least possible time in custody. Clark K. v. Guinn, No. 2:06CV-1068 RCJ-RJJ, 2007 WL 1435428 (D. Nev. May 14, 2007) (rejecting substantive due process claim to “not be retained in custody longer than is necessary” or to “to be placed in the least restrictive placement based on the foster child’s needs”); Eric L. By and Through Schierberl v. Bird, 848 F. Supp. 303, 307 (D.N.H. 1994) (rejecting substantive due process claim to placement stability); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 504-08 (D.N.J. 2000) (rejecting substantive due process claim to “not remain in state custody unnecessarily” or “to be housed in the least restrictive, most appropriate and family-like placement while in state custody”); K.H. Through Murphy v. Morgan, 914 F.2d 846, 853 (7th Cir. 1990) (rejecting substantive due process claim to “a stable foster-home environment”).
Likewise, and consistent with the “basic needs” standard, at least one circuit has rejected a substantive due process claim based on placing children out of state or in facilities that are not
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“necessarily appropriate for their service level of needs.” M.D., 907 F.3d at 268. In reaching that conclusion, the court observed that although placing foster children in-region and in a placement that is ideal for their service levels and personal needs is desirable, the failure to do so does not, without more, amount to a due process violation. Id. Even where those out-of-region placements may have negative effects on children’s mental health, “those negative effects are not constitutionally cognizable harms.” Id.
Even in the best of circumstances, the State cannot eliminate all risk of psychological or emotional harm to children who have come into its custody due to parental neglect and abuse, and the Constitution does not require that it do so. To be sure, “egregious intrusions on a child’s emotional well-being—such as, for example, persistent threats of bodily harm or aggressive verbal bullying—are constitutionally cognizable.” Id at 251. But “[i]ncidental psychological injury that is the natural, if unfortunate, consequence of being a ward of the state does not give rise to the level of a substantive due process violation.” Id. The same is true of the complaint’s allegations that foster children should be protected from mental and emotional harm and to ensure their emotional well-being. (Compl. ¶¶ 200.a., b.) The complaint falls well short of alleging any kind of “persistent threats of bodily harm” or “aggressive verbal bullying.” At most, it alleges that many of the plaintiffs have suffered trauma from being raised by abusive or neglectful parents, and that being taken into protective custody intensified that trauma. (E.g., id. ¶¶ 60, 67-68, 75, 81-82, 111.)
Several of the complaint’s claims for relief pursuant to the Fourteenth Amendment appear to draw from sources other than the Fourteenth Amendment. For instance, the complaint alleges an obligation on the State’s part to make reasonable efforts to obtain an appropriate permanent home. (Id. ¶ 200.3.) But the genesis of that obligation is Oregon’s Juvenile Code, see generally ORS 419B.476, and federal statutory law, not the Due Process Clause. Plaintiffs cannot transform another source of law into a substantive due process claim. DeShaney, 489 U.S. at 202 (“A State may, through its courts and legislatures, impose such affirmative duties of care . . . as it wishes. But not ‘all common-law duties . . . were . . . constitutionalized by the Fourteenth Amendment.’”) (quoting Daniels v. Williams, 474 U.S. 327, 335 (1986)). Page 18 - DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO
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For the foregoing reasons, the Court should dismiss the due process claim to the extent that it seeks redress for rights not protected by the limited purview of substantive due process.
C. In the alternative, this Court should order that the complaint be made more definite and certain.
Alternatively, this Court should require plaintiffs to make their complaint more definite and certain pursuant to FRCP 12(e) so that the State may fairly respond to it. Fundamental to stating a substantive due process claim is pleading the liberty interest that the plaintiff alleges that the defendant has harmed. Although the complaint describes the named plaintiffs’ individual circumstances (see Compl. ¶¶ 45-199), and, in a separate section, describes the litany of interests that plaintiffs believe the Due Process Clause protects (see id. ¶¶ 200, 306-307), it does not specifically link any of their individual circumstances with a specific deprivation of a substantive due process right. General descriptions of plaintiffs’ circumstances and a list of purported substantive due process rights, without connecting the two, fall short of the required pleading standard. Ashcroft, 556 U.S. at 677-78 (to survive a motion to dismiss, plaintiffs must allege facts that show a “plausible entitlement to relief”). Each of the sections describing the plaintiffs’ histories and ending with boilerplate allegations that the State has violated the child’s “due process and federal statutory rights” similarly fall short of the requisite pleading standard: it is plaintiffs’ obligation to particularly allege which actions violate due process, and they have failed to do so. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (one must be able to “determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery”); see also Sameer v. Right Moves 4 U, No. 1:17-CV-886 AWIEPG, 2018 WL 1875536, at *3 (E.D. Cal. Apr. 19, 2018) (granting motion to dismiss because “[m]any of Plaintiff’s claims appear duplicative, and though Plaintiff includes almost 300 paragraphs of factual allegations, it is near impossible to connect these facts to the elements of Plaintiff’s claims”); Washington v. California Dep’t of Corr. & Rehab., No. CV 19-169-VAP (KK), 2019 WL 1206487, at *5 (C.D. Cal. Mar. 14, 2019) (“Unclear pleadings, like the Complaint, that ‘leave it to the Court to figure out what the full array of Plaintiff’s claims is and
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upon what federal law, and upon what facts, each claim is based,’ are subject to dismissal.”) (internal citation omitted).
For these reasons, in the alternative to dismissing the due process claim, the Court should order plaintiffs to specifically plead allegations for each plaintiff showing what state actions purportedly violate which substantive due process rights. III. There is no private right of action to dictate the contents of a case plan under the
Child Welfare Act. Congress did not create a private right of action under the CWA for foster children to sue in federal court to enforce the contents of their case plans; rather, the statute requires the states to conduct that review. The second claim for relief asserts a privately enforceable right to sue in federal court to demand (1) a written case plan; (2) the creation and implementation of a case plan that “ensures that the child receives safe and proper care”; (3) the creation and implementation of a case plan that further “ensures provision of services to parents, children, and foster parents to facilitate reunification, or . . . the permanent placement of the child and implementation of that plan”; and (4) a case review system. (Compl. ¶ 309.) As described below, the Ninth Circuit (on one side of a circuit split) recognizes a private right of action to enforce the existence of case plans and state review of that plan ((1) and (4) above). But the complaint does not allege that the State has failed to provide a written case plan for any named plaintiff or failed to provide for review of those case plans. And there is no federal private right of action to enforce the contents or successful implementation of that plan ((2) and (3) above). Instead, Congress entrusted that review to the states, ensuring that the states retain control over the critical domestic area of welfare of children in their care. The second claim for relief should thus be dismissed. A. The complaint does not plead that plaintiffs have been denied a written case
plan or case review system. Although the Ninth Circuit has held that the CWA provides a privately actionable right to a written case plan and review of that plan, the factual allegations fail to state a claim to enforce that right. Henry A. v. Willden, 678 F.3d 991, 1006-08 (9th Cir. 2012); (Compl. ¶¶ 309.a., d.) The complaint does not allege that the State denied plaintiffs case plans; to the contrary, the
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complaint expressly acknowledges the existence of case plans for the named plaintiffs. (See, e.g., id., ¶¶ 54, 56, 76, 117, 131, 188, 198 (mentioning named plaintiffs’ case plans).) The complaint is equally devoid of a single allegation relating to a lack of review system for the case plans. (See generally Compl.) Thus, as to the rights that plaintiffs can privately enforce, a right to a case plan and review of that plan, the allegations do not support any deprivation of that right.
B. There is no private right of action under the CWA to particular contents of or implementation of the case plan.
The gravamen of plaintiffs’ CWA claim appears to be grounded in provisions in the CWA that are not privately enforceable. The complaint asserts a federal right to the existence and implementation of a case plan that “ensures that the child receives safe and proper care” and “ensures provision of services to parents, children, and foster parents to facilitate reunification or . . . the permanent placement of the child.” (Compl. ¶¶ 309.b., c.) Although these goals are on the forefront of any caseworker’s mind, plaintiffs do not have a right under the CWA to sue over them in federal court.
To find a private right of action exists to enforce provisions of a federal statute, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002) (emphasis in original) (internal citation omitted). “Accordingly, it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [§ 1983].” Id. at 283. To determine whether a federal statute creates such a “right,” courts should be “guided” by three factors: (1) whether the provision was “intended to benefit the plaintiff”; (2) whether the asserted right is not “so vague and amorphous” that its enforcement would strain judicial competence”; and (3) whether the statute unambiguously mandates an obligation on the States. Id. (citing Blessing v. Freestone, 520 U.S. 329, 340 (1997)). In a statute enacted pursuant to Congressional authority under the Spending Clause (such as the CWA), courts must be particularly mindful that Congress “speaks with a clear voice,” and “manifests an unambiguous intent” so that the state is on notice of the risk of suit. Gonzaga, 536 U.S. at 280 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1
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(1981)); see also Suter v. Artist M., 503 U.S. 347, 358 (1992) (recognizing that the CWA is to be read “in the light shed by Pennhurst”).
Under the analysis set forth in Blessing, the CWA does not unambiguously confer the rights to the creation and implementation of a case plan that guarantees “safety,” “proper care,” and “services.” Although the Ninth Circuit has already decided that the creation and review of the case plans under the CWA meets the first Blessing factor in that the case plans are intended to benefit foster children, the second and third Blessing considerations—requiring that the statute contain language in mandatory terms that are neither “vague” nor “amorphous”—weigh heavily against fashioning a new right of action. See Henry A., 678 F.3d 991 at 1007; Blessing, 520 U.S. at 340. The sections of the CWA that plaintiffs claim support the private right of action do not confer such a right at all, let alone unambiguously.
1. The CWA does not contain the words that plaintiffs use to assert a new right of action.
Plaintiffs rely on 42 U.S.C. § 671(a)(16) and 675(1)(B) as the source for a new private right of action to case plans guaranteeing “safety,” “proper care,” and “services,” but neither section confers such a right. Section 671(a)(16) requires only “the development of a case plan” as defined in section 675. 42 U.S.C. § 671(a)(16). The State certainly expects and desires that foster care case plans work towards proper care and services, as a matter of sound practice and social policy. But by its plain language, section 671(a)(16) cannot create a right to case plans to ensure proper care and services because it only provides for the “development of a case plan” as defined in section 675(1).
Nor does section 675(1) unambiguously confer a right to the creation and implementation of a case plan that “ensures” safety, proper care, or services. Section 675(1)(B) does say the that the case plan should include “a plan for assuring that the child receives safe and proper care and that services are provided to facilitate return of the child, including a discussion of the appropriateness of those services.” 42 U.S.C. § 675(1)(B). However, it does not, as the complaint alleges, contain language “ensuring” any particular contents, nor does the section speak to “implementation” of the plan at all. Rather, the statute uses the word “assure,” which
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means to “give confidence to.” BLACK’S LAW DICTIONARY, 10th ed., p. 150 (2004). The use of this term in this context makes sense, given that the purpose of the case plan’s inclusion in the overall state plan is to assure the federal agency that the state will comply with the CWA’s provisions and therefore qualify for federal funding. 42 U.S.C. § 671(a) (“In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which [contains a list of requirements].”). The CWA’s repeated requirements for the State to document the efforts that the State has undertaken to achieve its goals, rather than report on the success of those goals, buttresses this conclusion. See, e.g., §§ 675(E), (F)(v), F(vi) (requiring documentation of the state’s efforts rather than any metric of success). And it is consistent with the statute’s mechanism of giving the states authority over the implementation and review of the plans affecting children in their care.
More importantly, neither section requires “implementation” of a case plan at all. The statute contemplates the creation of a case plan, and review by the state of that case plan. See 42 U.S.C. § 671(a)(16) (providing for “a case review system”). The CWA is silent on implementation, underscoring the fact that Congress did not intend to make either the specific contents or success level of a case plan reviewable by federal court. At least one court has already rejected the invitation to read such a right into the case plan provisions: “While it is of course to be expected that a plan will be implemented, nothing in the statutory language specifically requires implementation or achievement of all of the particulars of the plan, much less successful achievement of outcomes.” Barricelli v. City of New York, No. 15 CV 5273LTS-HBP, 2016 WL 4750178, at *6 (S.D.N.Y. Sept. 12, 2016).
2. The statute provides no guidance as to how a federal court should analyze the new private right of action.
Even if the requirements of creating and “implementing” a plan that “ensures” its success could be inferred from the actual words in the statute, the statute is ambiguous in how to evaluate them. The statute provides no guidance whatsoever as to what “safe and proper care” is, or what services are “appropriate.” See 42 U.S.C. § 675(1)(B). Indeed, the Supreme Court has already concluded that similarly vague language in the CWA is unenforceable. In Suter v. Artist M., the
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Court considered whether 42 U.S.C. § 671(a)(15), requiring that “reasonable efforts shall be made” to achieve permanency for the child, created a private right of action . 503 U.S. 347 (1992).3 With “[n]o further statutory guidance . . . as to how ‘reasonable efforts’ are to be measured,” the Court concluded that the phrase would “obviously vary with the circumstances of each individual case,” providing insufficient guidance for federal court enforcement. Id. at 360. The logic in Suter applies with equal force to section 675(1)(B). There is “no further statutory guidance” as to how to interpret the terms “proper care” or “appropriateness” of services, terms which would “obviously vary” in each child’s case. Because the statute does not contain language supporting plaintiffs’ desired causes of action—and, even if it did, lacks unambiguous guidance as to how to enforce them—this Court should not read new rights of action into the CWA.4
IV. The complaint fails to state a claim for relief under the ADA and Rehabilitation Act.
The ADA and the Rehabilitation Act (the “disability statutes”) share the same elements. Vos v. City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018), cert. den. sub nom. City of Newport Beach, Cal. v. Vos, No. 18-672, 2019 WL 2166407 (U.S. May 20, 2019) (“We, like the district court, analyze the Parents’ ADA and Rehabilitation Act claims together because the statutes provide identical remedies, procedures and rights.”). Accordingly, defendants analyze the two claims together and, as to both, the complaint fails to state a claim.
3 Although Congress superseded by statute a different portion of holding in Suter, it explicitly left this holding in place, and, as a result “remains instructive” as to the construction of the CWA. Barricelli v. City of New York, No. 15 CV 5273-LTS-HBP, 2016 WL 4750178, at *4 (S.D.N.Y. Sept. 12, 2016).
4 Unlike the Ninth Circuit, multiple courts have concluded that 42 U.S.C. § 671(a)(16) does not confer a private right of action at all. See, e.g., T.F. by Keller v. Hennepin Cnty., No. CV 17-1826 (PAM/BRT), 2018 WL 940621, at *6 (D. Minn. Feb. 16, 2018); M.B. by Eggemeyer v. Corsi, No. 2:17-CV-04102-NKL, 2018 WL 327767, at *164 (W.D. Mo. Jan. 8, 2018); Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543, 565 (S.D. Miss. 2004); Braam ex rel. Braam v. State, 150 Wn.2d 689, 712 (2003); 31 Foster Children, 329 F.3d 1255, 1271-74 (11th Cir. 2003); Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 544 (D. Neb. 2007); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 490 n. 3 (D.N.J. 2000) (specifically rejecting the notion that the CWA created a right to “safe and proper care”).
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To state a claim for relief under the disability statutes, plaintiffs must allege that (1) they

are individuals with disabilities; (2) they are otherwise qualified to participate in or receive the

benefit of a public entity’s services, programs or activities; (3) they were either excluded from

participation in or denied the benefits of the public entity’s services, programs or activities or

were otherwise discriminated against by the public entity; (4) and such exclusion, denial of

benefits or discrimination was by reason of their disabilities. See id. (listing elements).

The complaint alleges discrimination on two theories. First, the complaint alleges that

plaintiffs were excluded from participating in the foster care program by reason of various

mental health issues. (Compl. ¶¶ 314-316.) Under this theory, the complaint asserts that a

“reasonable” accommodation of their disabilities would be “additional mental health services” in

“community-based therapeutic foster homes.” (Id. ¶¶ 317, 319, Prayer ¶ 331.b.iii).)

Second, the complaint alleges that the state violated what is known as the integration

mandate: the ADA regulation prohibiting states from conditioning government services on

institutionalization. See 28 C.F.R. 35.130(d) (requiring that the state administer its “services,

programs, and activities in the most integrated setting appropriate to the needs of qualified

individuals with disabilities”). Under this theory, the complaint alleges that the state violated the

disability statutes by placing some foster children in residential facilities instead of “community-

based placements.” (Compl. ¶¶ 38.b., 327.) Under both theories, plaintiffs fail to state a claim

for relief. A.

Plaintiffs’ requested mental health treatment is not a reasonable accommodation required by the disability statutes.

The complaint fails to state a claim under the disability statutes because it does not allege

that plaintiffs were denied access to existing government services. Rather, the complaint alleges

only that the state should provide them with “additional” or “different” services. The disability

statutes provide that the disabled may not be “excluded from” participation in government

programs “by reason of” the disability. 29 U.S.C. § 794 (Rehabilitation Act); 42 U.S.C. § 12132

(ADA). Where a government policy is facially neutral, plaintiffs must show that, looking at the

program in its entirety, plaintiffs were denied “meaningful access” to the relevant public

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services. K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). In that event, a reasonable accommodation may be required. Alexander v. Choate, 469 U.S. 287, 301 (1985). But “the ADA prohibits discrimination because of disability, not inadequate treatment for disability.” Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (emphasis added). Thus, disabled individuals are not entitled to additional services, such as treatment, that are not offered to non-disabled individuals. See Alexander, 469 U.S. at 303 (holding that Rehabilitation Act did not require that state Medicaid program permit disabled individuals more days of inpatient treatment than non-disabled individuals); see also ADA Title II Technical Assistance Manual (“[T]he ADA generally does not require a State or local government entity to provide additional services for individuals with disabilities that are not provided for individuals without disabilities.”) https://www.ada.gov/taman2.html.
Here, the complaint seeks mental health treatment that is not mandated by the disability statutes. In particular, the complaint seeks “additional mental health services” in the form of placement in “therapeutic family foster homes”; i.e. long-term foster homes with parents trained to provide therapeutic services. (Compl. ¶¶ 298, 319.) Again, while these kinds of homes may be desirable for a number of policy reasons, that is a question separate from whether the disability statutes require it. They do not. Charlie H., 83 F. Supp. 2d at 501 (dismissing similar claims seeking placement in therapeutic foster homes because the ADA does not require the state provide “special services or affirmative assistance to the disabled”). Thus, because the disability statutes did not require the state to provide the type of “additional mental health services” the complaint seeks, the claims should be dismissed.
B. The State did not violate the disability statutes’ integration mandate by placing foster children in residential facilities and foster homes.
Plaintiffs’ theory based on the integration mandate similarly fails. One form of discrimination under the disability statutes is conditioning the provision of government services on institutionalization. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 (1999) (holding that state program violated ADA where “[i]n order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life
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they could enjoy given reasonable accommodations”); see also 28 C.F.R. 35.130(d) (requiring that state administer its “services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities”). But the disability statutes do not require that the State “provide a certain level of benefits to individuals with disabilities[,]” only that the State not discriminate against the disabled “with regard to the services [it] in fact provide[s].” Olmstead, 527 U.S. at 603 n. 14. Thus, a plaintiff asserting an integration mandate violation, like a plaintiff seeking a reasonable accommodation, is only entitled to receive existing services on a non-discriminatory basis. Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999) (“Olmstead reaffirms that the ADA does not mandate the provision of new benefits.”).
As the Ninth Circuit has explained, states have “‘leeway’ in administering services for the disabled.” Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005). If resource limitations require that a given program provide both residential and community-based care, the state does not violate the disability statutes if it administers the program with “an even hand” and transitions individuals to community-based care “once space open[s] up.” Id. at 620.
Here, the complaint alleges that the State failed to provide “an array of community-based placements and services to ensure access to the least restrictive environment.” (Compl. ¶ 202.) But the complaint alleges that is true for all foster children in Oregon, not just disabled children. (Id. ¶ 261.) Thus, the complaint challenges the “level of benefits” provided by the foster care program generally, a claim the disability statutes do not recognize. See M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 175, 198 (D. Conn. 2008) (rejecting ADA integration claim based on disabled child’s placement in residential foster care facilities); Charlie H., 83 F. Supp. 2d at 501 (rejecting ADA discrimination claims based on foster care program’s failure to provide therapeutic foster homes).
The integration mandate claims also fail because the complaint does not allege that plaintiffs have been institutionalized or otherwise kept out of an integrated environment. In the disability statutes, “integrated” means enabling interactions with non-disabled individuals. 28 C.F.R. § 35.130, Part 35, App. B (most integrated setting appropriate refers to settings that enables individuals with disabilities to interact with nondisabled persons). None of the plaintiffs Page 27 - DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO
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allege that they have been segregated from non-disabled individuals. (E.g., Compl. ¶ 20 (foster

home); ¶¶ 88, 109, 139, 178, 181 (“residential” facilities and “shelters”); ¶ 124 (describing one

facility as “a campus-like setting where children are housed in cottages”).) Thus, the complaint fails to adequately allege a violation of the integration mandate.
CONCLUSION

For the foregoing reasons, this Court should abstain from considering this case under

O’Shea. If this Court declines to abstain, it should nevertheless dismiss the claims for relief

because they are legally deficient.

DATED this 25th day of July, 2019.
ELLEN ROSENBLUM ATTORNEY GENERAL FOR THE STATE OF OREGON

By: s/Anna M. Joyce
David B. Markowitz, OSB #742046 DavidMarkowitz@MarkowitzHerbold.com Laura Salerno Owens, OSB #076230 LauraSalerno@MarkowitzHerbold.com Anna M. Joyce, OSB #013112 AnnaJoyce@MarkowitzHerbold.com Harry B. Wilson, OSB #077214 HarryWilson@MarkowitzHerbold.com Lauren F. Blaesing, OSB #113305 LaurenBlaesing@MarkowitzHerbold.com Telephone: (503) 295-3085

Special Assistant Attorneys General for Defendants

Carla A. Scott, OSB #054725 carla.a.scott@doj.state.or.us Renee Stineman, OSB #994610 renee.stineman@doj.state.or.us Sheila H. Potter, OSB #993485 sheila.potter@doj.state.or.us

WYATBR\877464.3

Of Attorneys for Defendants

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Case 6:19-cv-00556-AA Document 31 Filed 07/25/19 Page 36 of 36 CERTIFICATE OF COMPLIANCE WITH L.R. 7-2(b)(2)
I certify that this brief complies with the applicable word-count limitation under L.R. 72(b), because it contains 10,171 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of authorities, signature block, and any certificates of counsel.
DATED this 25th day of July, 2019. s/Anna M. Joyce ____________________________________ Anna M. Joyce, OSB #013112 Special Assistant Attorneys General for Defendants
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 Case 6:19-cv-00556-AA Document 37 Filed 08/08/19 Page 1 of 5

GREGORY A. CHAIMOV, OSB #822180 gregorychaimov@dwt.com PAUL C. SOUTHWICK, OSB #095141 paulsouthwick@dwt.com DAVIS WRIGHT TREMAINE LLP 1300 SW Fifth Avenue, Suite 2300 Portland, OR 97201 Tel: (503) 241-2300
Attorneys for Plaintiffs
Other Counsel Listed Below Signature

UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION

WYATT B. and NOAH F. by their next friend Michelle McAllister; KYLIE R. and ALEC R. by their next friend Kathleen Megill Strek; UNIQUE L. by her next friend Annette Smith; SIMON S. by his next friend Paul Aubry; RUTH T. by her next friend Michelle Bartov; BERNARD C. by his next friend Ksen Murry; NAOMI B. by her next friend Kathleen Megill Strek; and NORMAN N. by his next friend Tracy Gregg, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
KATE BROWN, Governor of Oregon in her official capacity; FAIRBORZ PAKSERESHT, Director, Oregon Department of Human Services in his official capacity; JANA MCLELLAN, Interim Director, Child Welfare in her official capacity, and OREGON DEPARTMENT OF HUMAN SERVICES,
Defendants.

Case No. 6:19-cv-00556-AA PLAINTIFFS’ MOTION TO STRIKE Oral Argument Requested

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4829-6071-9263v.1 0201450-000001

DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax

Case 6:19-cv-00556-AA Document 37 Filed 08/08/19 Page 2 of 5

CERTIFICATE OF COMPLIANCE In compliance with Local Rule 7-1, the parties made a good faith effort through a telephone conference to resolve the disputes that are the subject of this motion but have been unable to do so.

MOTION Plaintiffs move for an order striking Exhibits 2 and 3 (Dkt. 32-2 & 32-3) from the Declaration of Anna M. Joyce in support of Defendants’ Motion to Dismiss or, in the alternative, to Make More Definite and Certain, as well as all references to such exhibits in Defendants’ Motion. Defendants identify Exhibit 2 as the Oregon Secretary of State, Department of Human Services Recommendation Follow-up Report: DHS Has Made Important Improvements, but Extensive Work Remains to Ensure Child Safety, Report 2019-24 (June 2019). Defendants identify Exhibit 3 as Office of the Governor, State of Oregon, Executive Order No. 19-03 (April 18, 2019).

ARGUMENT Defendants argue that Exhibits 2 and 3 are properly before the court because “[o]n a motion to dismiss, a court may take judicial notice of matters of public record outside the pleadings. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).” Dkt. 31, p. 6, n. 2. However, Defendants’ request for judicial notice goes beyond what the Federal Rules of Civil Procedure and Federal Rules of Evidence permit. As this court recognizes:

Generally, a court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. U.S. v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). There are three exceptions to this rule: 1) a court may consider documents properly submitted as part of the complaint on a motion to dismiss; 2) if documents are not physically attached to the complaint, incorporation by reference is proper if the document's authenticity ... is not contested” and “the plaintiff's complaint necessarily relies” on them; and 3) a court may take judicial notice of “matters of public record.” See Lee v. Los Angeles, 250 F.3d 668, 688–89 (9th Cir.2001) (internal citations omitted). As such, a court may

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DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax

Case 6:19-cv-00556-AA Document 37 Filed 08/08/19 Page 3 of 5

treat such a document as “part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908. Lonberg v. Freddie Mac, 776 F. Supp. 2d 1202 (D. Or. 2011). Here, Defendants ask this Court to assume that the contents of Exhibits 2 and 3 are true because they are matters of public record. The Court should reject Defendants request because courts may only “take judicial notice of adjudicative facts that are not ‘subject to reasonable dispute.’ See Ritchie, 342 F.3d at 909 (citing Fed.R.Evid. 201(b)). Facts are indisputable if they are ‘generally known’ or ‘capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.’ Id. (citing Fed.R.Evid. 201(b)(1)-(2)).” Lonberg, 776 F. Supp 2d at 1207. Plaintiffs do not dispute the existence of Exhibits 2 and 3. However, Plaintiffs dispute the accuracy of at least some of the contents of the exhibits, as well as the significance of the exhibits. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (district court could not rely on disputed extrinsic evidence); Lonberg, 776 F. Supp. 2d at 1206 (D. Or. 2011) (same); Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1001 (9th Cir. 2018) (court could not take notice of public agency report where there was “reasonable dispute as to what the report establishes”); U.S. v. Bonds, 12 F.3d 540, 553 (6th Cir. 1993) (refusing to take judicial notice of article because though there was no dispute that the report existed, there was considerable dispute over the significance of its contents); County of San Miguel v. Kempthorne, 587 F.Supp.2d 64, 78 (D.D.C. 2008) (refusing to take judicial notice of Inspector General report where the investigative process was unclear, its conclusions were disputed, and opposing party lacked fair opportunity to contest its conclusion). Consequently, Exhibits 2 and 3 are not proper subjects of judicial notice and should be stricken from the record. Additionally, Defendants use Exhibit 2 and Exhibit 3 to urge the Court to infer that it can be trusted to resolve the allegations in Plaintiffs’ Complaint without federal court intervention. Dkt. 31, at 5. However, declarations of intent to reform are not actual evidence of future outcomes in any procedural posture, Pierce v. Cty. of Orange, 526 F.3d 1190, 1223 (9th Cir.

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DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax

Case 6:19-cv-00556-AA Document 37 Filed 08/08/19 Page 4 of 5

2008), and are especially improper subjects of consideration at this phase because they violate the right of the non-movant to have all evidence and inferences construed in their favor. Lonberg, 776 F. Supp. 2d at 1205. Moreover, leaving aside the limited scope of the executive order and the extremely limited progress reported in the June 2019 report, evidence post-dating the Complaint cannot affect whether or not a claim was stated as of the date of filing. In any event, Defendants do not even rely on the exhibits to support the legal arguments advanced in their Motion. For these reasons, the exhibits, even if proper subjects of judicial notice, should be stricken as irrelevant.
CONCLUSION For the foregoing reasons, the Court should strike Exhibits 2 and 3 from the Declaration of Anna M. Joyce in support of Defendants’ Motion to Dismiss or, in the alternative, to Make More Definite and Certain, as well as all references to such exhibits in Defendants’ Motion. Dated this 8th day of August, 2019.
DAVIS WRIGHT TREMAINE LLP

s/ Paul C. Southwick Gregory A. Chaimov, OSB #822180 gregorychaimov@dwt.com Paul C. Southwick, OSB #095141 paulsouthwick@dwt.com 1300 SW Fifth Avenue, Ste. 2400 Portland, OR 97201 Tel: (503) 241-2300 Fax: (503) 778-5299

A BETTER CHILDHOOD
Marcia Robinson Lowry (pro hac vice) mlowry@abetterchildhood.org Dawn J. Post (pro hac vice) dpost@abetterchildhood.org 355 Lexington Avenue, Floor 16 New York, NY 10017 Tel: (646) 795-4456 Fax: (212) 692-0415

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DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax

Case 6:19-cv-00556-AA Document 37 Filed 08/08/19 Page 5 of 5
DISABILITY RIGHTS OREGON Emily Cooper, OSB #182254 ecooper@droregon.org Thomas Stenson, OSB #152894 tstenson@droregon.org Christine Shank (admission pending) cshank@droregon.org 511 SW 10th Avenue, Suite 200 Portland OR 97205 Tel: (503) 243 2081 Fax: (503) 243 1738
Attorneys for Plaintiffs

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DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax