Case: 09-5093 Document: 01018362826 Date Filed: U02n/i0t8ed/2S01ta0teFsICPLaoEguDer:t 1of Appeals Tenth Circuit

February 8, 2010

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DG, by Next Friend G. Gail Stricklin; CS, by Next Friend Barbara Sears; JB, by Next Friend Buddy Faye Foster; AP, by Next Friend Leslie A. Ellis Kissinger; JA, by Next Friend Buddy Faye Foster; JP, by Next Friend G. Gail Stricklin; RJ, by Next Friend Paul Naylor; GC, by Next Friend Anne Sublett; KT, by Next Friend Barbara Sears, for themselves and those similarly situated,
Plaintiffs-Appellees,
v.
RICHARD L. DEVAUGHN, in his official capacity as Chairman of the Oklahoma Commission for Human Services; RONALD L. MERCER, in his official capacity as Vice-Chairman of the Oklahoma Commission for Human Services; JAY DEE CHASE; PATRICK DILLS DOUGLAS; MICHAEL L. PECK; GEROLDINE WEBB; ANETA F. WILKINSON; GEORGE E. YOUNG, SR., in their official capacities as members of the Oklahoma Commission for Human Services; HOWARD HENDRICK, in his official capacity as Director of the Department of Human Services,
Defendants-Appellants.
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No. 09-5093

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WHITE FIELDS, INC.; OKLAHOMA BAPTIST HOMES FOR CHILDREN; OKLAHOMA UNITED METHODIST CIRCLE OF CARE; SAND SPRINGS CHILDREN'S HOME; AMERICAN LEGION CHILDREN'S HOME; PEPPERS RANCH, INC.; OKLAHOMA LIONS BOYS RANCH; GOODLAND ACADEMY,
Movants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 08-CV-074-GKF-FHM)
Marsha Robinson Lowry, Children’s Rights, New York, New York (Frederic Dorwart and Paul DeMuro, Frederic Dorwart Lawyers, Tulsa, Oklahoma, and R. Thomas Seymour and Scott A. Graham, Seymour & Graham, LLP, Tulsa Oklahoma, and Bruce W. Day and Joe E. Edwards, Day, Edwards, Propester & Christensen, Oklahoma City, Oklahoma, with her on the briefs) for PlaintiffsAppellants.
Donald M. Bingham, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Tulsa, Oklahoma (Holly M. Hillerman, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Tulsa Oklahoma, and Robert A. Nance and Melvin C. Hall, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Oklahoma City, Oklahoma, with him on the briefs) for Defendants-Appellees.
Before HOLMES, BALDOCK, and SILER,* Circuit Judges.
BALDOCK, Circuit Judge.
* Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation.

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Nine Oklahoma foster children (“Named Plaintiffs”), acting through their next friends, filed suit under 42 U.S.C. § 1983 against members of the Oklahoma Commission for Human Services and the Director of the Oklahoma Department of Human Services (“OKDHS”) in their official capacities, seeking declaratory and injunctive relief. The Oklahoma Commission for Human Services is the body responsible for formulating the policies and adopting the rules and regulations for the administration of the OKDHS. In their complaint, Named Plaintiffs sought certification of a class of all children who are or will be in the legal custody of OKDHS due to a report or suspicion of abuse or neglect or who are or will be adjudicated deprived due to abuse or neglect—approximately 10,000 children. Named Plaintiffs allege OKDHS’s agency-wide foster care policies and practices expose all class members to an impermissible risk of harm, violating their Fourteenth Amendment right to substantive due process, their Fifth and Fourteenth Amendment rights to procedural due process, and their liberty and privacy interests guaranteed by the First, Ninth and Fourteenth Amendments. Specifically, Named Plaintiffs assert OKDHS’s agency-wide deficiencies include: (1) failing to protect class members from abuse and neglect while in OKDHS custody; (2) failing to protect class members from abuse or neglect by their biological parents while in OKDHS custody; (3) assigning excessive caseloads to its child welfare caseworkers and supervisors; (4) engaging in dangerous monitoring and oversight practices; (5) placing class members in unsafe and overcrowded emergency shelters; (6) placing
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class members in unsafe foster homes as a result of failing to develop sufficient numbers of safe placements; (7) maintaining policies and practices that deny class members opportunities to develop critical family relationships; and (8) maintaining policies and practices that subject class members to harmful moves among multiple inappropriate homes and facilities.
When Named Plaintiffs filed their complaint seeking class certification in February 2008, the parties did not have the benefit of our decisions in Shook v. Board of County Commissioners, 543 F.3d 597 (10th Cir. 2008) (“Shook II”), and Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009), which explain the proper standards for class certification when plaintiffs seek injunctive relief. In light of Shook II, the district court allowed Named Plaintiffs to supplement their motion for class certification by submitting a statement of relief sought and then ordered both parties to submit briefs addressing whether a class action seeking the relief requested by Named Plaintiffs would satisfy the requirements of Federal Rules of Civil Procedure 23(a), 23(b)(2), and 65(d) as explained in Shook II.
After reviewing Named Plaintiffs’ nine alleged common questions of fact, five alleged common questions of law, and seven requested remedies, as well as both parties’ supplemental briefs, the district court certified the proposed class. The district court found the proposed class met Rule 23(a)(1)’s numerosity requirement and Rule 23(a)(4)’s adequacy of class representation requirement. Neither party disputes the class meets those requirements. The district court also explained in a
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thorough and careful order that at least one question of fact and one question of law were common to the class, satisfying Rule 23(a)’s commonality requirement. Based on the evidence submitted by the parties, the district court concluded “[w]hether [OK]DHS has a policy or practice of failing to adequately monitor the safety of class members causing significant harm and risk of harm to their safety, health and wellbeing” presents an issue of fact common to the entire class. According to the court, this common question of fact raised one common issue of law: “[W]hether [OK]DHS’s policies or practices violate class members’ right to be reasonably free from harm and imminent risk of harm while in state custody.” The court then concluded because Named Plaintiffs’ claims are typical of the class’s claims and Named Plaintiffs’ claims are not significantly antagonistic to the class, the class satisfied Rule 23(a)’s typicality requirement. Finally, the court determined at least two of Named Plaintiffs’ proposed remedies—(1) an injunction setting limits on the caseloads of caseworkers and their supervisors assigned to the class based on Council on Accreditation (COA) and Child Welfare League of America (CWLA) standards and (2) an injunction requiring caseworkers to visit all children in OKDHS custody as frequently as set forth under COA and CWLA standards—satisfy Rule 23(b)(2) and 65(d)’s requirements as explained in Shook II.
We granted Defendants’ timely request for permission to file an interlocutory appeal of the district court’s order granting class certification. Defendants argue the district court abused its discretion by erroneously finding the proposed class satisfied
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Rule 23(a)’s commonality and typicality requirements. They also assert the district court erred in concluding the proposed class satisfied Rule 23(b)(2)’s “generally applicable” and cohesiveness requirements. Exercising jurisdiction under 28 U.S.C. § 1292(e) and Fed. R. Civ. P. 23(f), we find no abuse of discretion and affirm the district court’s order.
“We review the standard the district court used in making its Rule 23 determination de novo and the merits of that determination for an abuse of discretion.” Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir. 2009); see also Shook v. El Paso County, 386 F.3d 963, 967 (10th Cir. 2004) (“Shook I”). Recognizing the considerable discretion the district court enjoys in this area, we defer to the district court’s certification ruling if it applies the proper Rule 23 standard and its “decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.” Vallario, 554 F.3d at 1264. We reverse for an abuse of discretion when the district court bases its decision on either a clearly erroneous finding of fact or conclusion of law or by manifesting a clear error of judgment. Id.
I. “‘In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.’” Shook I, 386 F.3d at 971 (quoting Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982)). A
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district court may certify a class if the proposed class satisfies the requirements of Rule 23(a) and the requirements of one of the types of classes in Rule 23(b). The party seeking class certification bears the burden of proving Rule 23’s requirements are satisfied. Shook I, 386 F.3d at 968. In deciding whether the proposed class meets these requirements, the district court “must accept the substantive allegations of the complaint as true,” though it “‘need not blindly rely on conclusory allegations of the complaint which parrot Rule 23’ and ‘may consider the legal and factual issues presented by plaintiff’s complaints.’” Id. (quoting J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999)); see also Vallario, 554 F.3d at 1265. While the court should not pass judgment on the merits of the case at the class certification stage, it must conduct its own “‘rigorous analysis,’” to ensure Rule 23’s requirements are met. Vallario, 554 F.3d at 1266–67 (quoting Shook I, 386 F.3d at 968); see also Shook II, 543 F.3d at 612.
A. Rule 23(a) requires numerosity of class members, commonality of at least one question of fact or law among the class, typicality of named plaintiffs’ claims or defenses to the class’s claims or defenses, and adequacy of the named plaintiffs and their attorneys as class representatives.1 Fed. R. Civ. P. 23(a)(1)–(4). On appeal,
1 Rule 23(a) states: One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
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Defendants only challenge the district court’s Rule 23(a) findings as to commonality and typicality. A finding of commonality requires only a single question of law or fact common to the entire class. J.B., 186 F.3d at 1288. Mere allegations of systemic violations of the law, however, will not automatically satisfy Rule 23(a)’s commonality requirement; a discrete legal or factual question common to the class must exist. Id. “[E]very member of the class need not be in a situation identical to that of the named plaintiff” to meet Rule 23(a)’s commonality or typicality requirements. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982) (citing Rich v. Martin Marietta Corp., 522 F.2d 333, 340 (10th Cir. 1975)). Factual differences between class members’ claims do not defeat certification where common questions of law exist. Id. (citing Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir. 1975)).
Defendants assert none of Named Plaintiffs’ questions of law or fact are common to all class members by stressing that each of the approximately 10,000 children in OKDHS’s custody receives an individualized and specific placement, treatment, and service plan that necessarily changes based on evolving circumstances
1(...continued) (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(1)–(4).
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and the unique characteristics of each child. Defendants, as a result, maintain that determining whether OKDHS has inadequate monitoring policies requires an individualized determination for each foster child. They also argue that Named Plaintiffs have not met their burden of proving that every class member is simultaneously subject to an imminent risk of serious harm as a result of OKDHS’s controverted policies and practices. Defendants assert that the very statistics Named Plaintiffs cite—1.2% of Oklahoma foster children in 2006 reported abuse or neglect, for instance—reveal Named Plaintiffs have not met this burden. They reason “[b]ecause 98.8% [of foster children] did not suffer injury or neglect, and because not all putative class members are under an imminent threat of serious harm, the District Court’s findings were clearly erroneous.”
Defendants also argue for the first time that Named Plaintiffs’ proposed class definition is “overly broad” because it includes children who are not under an actual or imminent threat of harm, thereby defeating commonality and typicality. We, of course, generally will not consider new arguments on appeal. See Robey-Harcourt v. BenCorp Financial Co., Inc., 326 F.3d 1140, 1143 (10th Cir. 2003) (explaining that “we will not consider a new theory on appeal, even one ‘that falls under the same general category as an argument presented at trial’”). But to the extent that Defendants’ “overly broad” argument relies on their argument, which they did assert below, that Named Plaintiffs must prove every class member is under a threat of harm to satisfy Rule 23(a)’s requirements of commonality and typicality, we address
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it here. Named Plaintiffs allege OKDHS caseworkers routinely fail to comply with its
own policy of requiring caseworkers to visit children in the foster care program at least once per month to monitor children’s safety and placement. They presented evidence to the district court that for the last five years Oklahoma has placed among the three worst states in the nation for the abuse or neglect of children in foster care. They also assert a report by the Oklahoma Commission on Children and Youth found that 25% of the foster homes it reviewed had serious safety issues and should never have been approved for placement by OKDHS in the first place. Named Plaintiffs maintain this and other similar evidence reveal OKDHS has a practice of failing to adequately monitor the safety of class members, exposing all of them to an unreasonable risk of harm.
In its ruling, the district court acknowledged the considerable diversity of the class Named Plaintiffs seek to represent—foster children range in age from infants to teenagers, enter the system for many different reasons, may be placed in thirtynine different kinds of placements, and have varying needs and goals. Nevertheless, the district court found at least one common issue of fact as to “[w]hether [OK]DHS has a policy or practice of failing to adequately monitor the safety of plaintiff children causing significant harm and risk of harm to [their] safety, health and wellbeing.” The district court explained that, based on the evidence submitted, whether OKDHS’s policies or practices inflict harm or a risk of harm presents a question of
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fact common to all children in the proposed class but expressly noted it was “not making any finding that these children are all subjected to harm as a result of [OK]DHS’s monitoring practices.” Similarly, the district court did not state it found OKDHS’s policies or practices actually subjected all class members to a risk of harm. The court simply found that the issue of “whether [OKDHS’s] monitoring practices compromise the safety of foster children is an issue common to the entire proposed class[,]” regardless of their unique factual circumstances. Based on the same rationale, the district court found at least one common issue of law regarding “whether the alleged policies or practices violate plaintiffs’ [substantive due process] right to be reasonably free from harm and imminent risk of harm while in state custody.” (citing Yvonne L. v. New Mexico Dep’t of Human Serv., 959 F.2d 883, 892 (10th Cir. 1992) (explaining that children in state custody have a constitutional right to be reasonably safe from harm)).
Accepting Named Plaintiffs’ allegations as true, as we must, we find the district court did not abuse its discretion in finding an issue of fact and law common to the class. Named Plaintiffs presented more than conclusory statements that OKDHS’s agency-wide monitoring policies and practices, or lack thereof, create a risk of harm shared by the entire class.2 All class members, by virtue of being in
2 We do not suggest that Named Plaintiffs have at this stage proven OKDHS’s monitoring polices or practices actually subject all class members to an impermissible risk of harm. For reasons we later explain, Named Plaintiffs need not
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OKDHS’s foster care, are subject to the purportedly faulty monitoring policies of OKDHS, regardless of their individual differences; therefore, all members of the class are allegedly exposed to the same unreasonable risk of harm as a result of Defendants’ unlawful practices. Though each class member may not have actually suffered abuse, neglect, or the risk of such harm, Defendants’ conduct allegedly poses a risk of impermissible harm to all children in OKDHS custody. Thus, we conclude the district court did not abuse its discretion in finding the requirement of commonality satisfied.
Defendants’ discussion of Milonas v. Williams, 691 F.2d 931, 935 (10th Cir. 1982) is unavailing. In Milonas, we affirmed the certification of a class of all juveniles committed to a Utah correctional school in a lawsuit which alleged that regardless of their individual differences “all of the boys at the school were in danger of being subjected to” the institution’s illegal practices. Id. at 938. We, therefore, concluded the typicality and commonality requirements of Rule 23(a) had been met. Id. The shared risk of being subjected to the purportedly unconstitutional practices justified certification. We did not require the named plaintiffs in Milonas to prove either every class member had actually been subjected to the controverted practices
2(...continued) prove class members have actually been subjected to an impermissible risk of harm at this stage. Rather, we mean Named Plaintiffs have provided, as Shook II and Vallario require, more than conclusory statements to demonstrate that whether OKDHS’s monitoring policies and practices subject class members to an impermissible risk of harm constitutes a question of fact common to the entire class.
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or every class member had actually suffered constitutionally-cognizable harm as a result of the practices. Similarly, in this case, every class member, by virtue of being in OKDHS’s custody, is subject to OKDHS’s monitoring practices or lack thereof and, therefore, “the issue of whether the monitoring practices compromise the safety of foster children is an issue common to the entire proposed class.”
Defendants’ reliance on J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999), is also unpersuasive. In J.B., we held the district court had not abused its discretion in denying class certification. The named plaintiffs in J.B. alleged multiple state agencies violated their rights; whereas, here Named Plaintiffs only allege one state agency and its policies violated their rights. Second, the class of plaintiffs in J.B. was far broader. The proposed class consisted of all children, custodial and non-custodial (those at risk of being taken into state custody), who had any form of developmental or mental disability. We, therefore, concluded “[o]ther than being disabled in some way and having some sort of contact with [the state]’s child welfare system, no common factual link joins” the suggested class. Id. at 1289. In contrast, Named Plaintiffs in this case propose a class of only those foster children in the custody of OKDHS by reason of abuse or neglect. Unlike the class members denied certification in J.B., all class members now before us are in the custody of one agency—OKDHS—for the same reason—abuse or neglect—and all are subject to OKDHS’s monitoring policies, which allegedly subject them to a constitutionally unreasonable risk of harm.
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Despite Defendants’ repeated suggestions otherwise, at the class certification stage Named Plaintiffs do not bear the burden of proving the veracity of their complaint’s allegations. Defendants’ contention that Rule 23(a)’s commonality and typicality requirements demand that Named Plaintiffs prove all class members were inadequately monitored or are actually exposed to an imminent threat of harm as a result of deficient monitoring conflates the requirements for standing, prospective injunctive relief, and class certification. First, only named plaintiffs in a class action seeking prospective injunctive relief must demonstrate standing by establishing they are suffering a continuing injury or are under an imminent threat of being injured in the future. See Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”); Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004) (“To seek prospective relief, the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.”).3 Second,
3 “Past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.” Tandy, 380 F.3d at 1283. To this end, the remaining six of the original nine Named Plaintiffs allege physical abuse, sexual abuse, and other injury due to unsafe conditions while in custody of OKDHS (three of the original nine Named Plaintiffs are no longer representatives or members of the class because they have been adopted or are no longer in OKDHS custody). The district court concluded the remaining Named Plaintiffs’ allegations satisfied standing’s injury in fact requirement and prospective relief’s imminent risk of future injury requirement. Defendants do not challenge these findings on appeal and, consequently, we do not
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Rule 23’s certification requirements neither require all class members to suffer harm or threat of immediate harm nor Named Plaintiffs to prove class members have suffered such harm. On the contrary, Named Plaintiffs only have a burden to prove that the allegations of their complaint, which at this stage we and the district court must accept as true, satisfy Rule 23(a)’s requirements. Shook I, 386 F.3d at 968. The Advisory Committee’s Note to Rule 23 explains certification is appropriate even if the defendant’s action or inaction “has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2), 1966 Amendment advisory committee note. “[A] class will often include persons who have not been injured by the defendant’s conduct . . . . Such a possibility or indeed inevitability does not preclude class certification.” Kohen v. Pacific Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009). Rule 23(a) only requires the district court to find a question of fact or law common to all class members. Fed. R. Civ. P. 23(a)(2). Requiring Named Plaintiffs to prove all class members were inadequately monitored or are actually exposed to a threat of harm due to OKDHS’s monitoring practices at the certification stage would require them to answer the common question of fact or law, rather than just prove it exists. Rule 23(a) does not require the district court to have an answer before certifying a class; classwide discovery and further litigation answer the
3(...continued) address them further.
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question after certification. We also briefly address Defendants’ argument that the district court made an
erroneous finding of fact. Defendants maintain because the evidence presented demonstrated a class member has only a 1.2% chance of being injured, then 98.8% of the putative class is not under an imminent threat of serious harm and, therefore, no issue of fact or law common to its members exists. This argument entirely misses the mark. The “injury” the Named Plaintiffs allege which the district court found constituted a question of fact common to the class is not solely actual abuse or neglect. The injury, instead, includes exposure to an impermissible risk of harm due to OKDHS’s alleged agency-wide failure to monitor class members adequately. That “only” 1.2% of OKDHS foster children actually suffered abuse reveals nothing about how many of those children were not properly monitored and yet survived an unconstitutional risk of abuse or neglect unscathed. Logically, the fact that 1.2% of OKDHS foster children reported abuse or neglect does not mean the rest of the class was not exposed to an impermissible risk of serious harm. In theory, 100% of foster children could live under an imminent threat of serious harm, but only 1.2% ultimately suffer and report abuse or neglect.
B. Having rejected Defendants’ claims of error as to the district court’s finding of commonality pursuant to Rule 23(a), we now address the district court’s typicality finding. Rule 23(a)(3) requires the claims of Named Plaintiffs to be typical of the
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claims of the class they seek to represent. The interests and claims of Named Plaintiffs and class members need not be identical to satisfy typicality. Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir. 1982). Provided the claims of Named Plaintiffs and class members are based on the same legal or remedial theory, differing fact situations of the class members do not defeat typicality. Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988).
Defendants argue against typicality by emphasizing class members’ individual circumstances and, therefore, the individualized defense to each class member’s claim of a constitutional violation. They also contend that Named Plaintiffs’ claims cannot be typical of the class because the Named Plaintiffs have alleged they suffered abuse while in OKDHS custody, while “only 1.2% of class members have suffered abuse or neglect while in foster care.”
After conducting its commonality analysis, the district court concluded that though each Named Plaintiff and each potential class member has his or her own unique background, the interests of the Named Plaintiffs and the class members are not significantly antagonistic to one another. And, like commonality, typicality exists where, as here, all class members are at risk of being subjected to the same harmful practices, regardless of any class member’s individual circumstances. See Milonas, 691 F.2d at 938 (finding commonality and typicality where all members of class were in danger of being subjected to certain disciplinary practices regardless of their individual differences). The harm and threat of harm suffered by the Named
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Plaintiffs as a result of OKDHS’s allegedly deficient monitoring practices is typical of the harm and threat of harm suffered by all children in the class because all foster children are subject to OKDHS’s challenged, agency-wide monitoring policies. Additionally, Named Plaintiffs allege OKDHS’s monitoring policies violate their substantive due process rights to be free from harm while in state custody, the same legal theory that underlies class members’ corresponding claims. Due to the common risk of harm and the common underlying legal theory for asserting that risk, the district court acted within its discretion to find that typicality was satisfied.
II. In addition to satisfying Rule 23(a)’s requirements, the class must also meet the requirements of one of the types of classes described in subsection (b) of Rule 23. Named Plaintiffs in this case seek to certify a Rule 23(b)(2) type of class, i.e., they assert Defendants have “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate for the class as a whole.”4 Fed. R. Civ. P. 23(b)(2). As we explained in Shook II, Rule 23(b)(2) “imposes two independent, but related requirements” upon
4 Rule 23(b) explains: A class action may be maintained if Rule 23(a) is satisfied and if . . . . (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. . . . Fed. R. Civ. P. 23(b)(2).
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those seeking class certification. Shook II, 543 F.3d at 604. First, plaintiffs must demonstrate defendants’ actions or inactions are “based on grounds generally applicable to all class members.” Id. Second, plaintiffs must also establish the injunctive relief they have requested is “appropriate for the class as a whole.” Id. (emphasis in original). Together these requirements demand “cohesiveness among class members with respect to their injuries. . . .” Id.
This cohesiveness, in turn, has two elements. First, plaintiffs must illustrate the class is “sufficiently cohesive that any classwide injunctive relief” satisfies Rule 65(d)’s requirement that every injunction “‘state its terms specifically; and describe in reasonable detail . . . the act or acts restrained or required.’” Id. (quoting Fed. R. Civ. P. 65(d)). Second, cohesiveness also requires that class members’ injuries are “sufficiently similar” that they can be remedied in a single injunction without differentiating between class members. Id. Rule 23(b)(2)’s bottom line, therefore, demands at the class certification stage plaintiffs describe in reasonably particular detail the injunctive relief they seek “such that the district court can at least ‘conceive of an injunction that would satisfy [Rule 65(d)’s] requirements,’ as well as the requirements of Rule 23(b)(2).” Id. at 605 (quoting Monreal v. Potter, 367 F.3d 1224, 1236 (10th Cir. 2004)).
Defendants challenge the district court’s Rule 23(b)(2) determination by arguing that the district court did not make a specific finding that OKDHS’s actions or inactions are based on grounds generally applicable to all class members as Rule
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23(b)(2) requires. A review of the district court’s ruling does not bear out this argument. The district court determined at least two remedies requested by Named Plaintiffs satisfied Rule 23(b)(2)’s requirements as explained in Shook II: (1) an injunction setting limits on the caseloads of caseworkers and their supervisors set by COA and CWLA and (2) an injunction mandating caseworkers monitor foster children by visiting them as frequently as set forth under COA and CWLA standards.5 The district court explained that because Named Plaintiffs assert that excessive caseloads are harming or putting at risk of harm all children in the class, the imposition of caseload limits would apply to the entire class. Similarly, the district court explained in its ruling the monitoring injunctive relief requested meets Rule 23(b)(2)’s cohesiveness requirement. Admittedly, the district court did not recite the exact language of Rule 23(b)(2)—“the party opposing the class has acted or refused to act on grounds that apply generally to the class”—when applying Shook II and its teachings to the facts of this case, but earlier in its ruling as part of its
5 For example, according to Named Plaintiffs, CWLA standards suggest a caseload of twelve to fifteen children per caseworker and no more than five caseworkers per supervisor. And, according to Named Plaintiffs, COA standards require caseworkers to meet with foster children and parents at least once per month. The district court did not necessarily accept Named Plaintiffs’ proposition that the caseload limits or monitoring requirements should be based on these standards. But because Named Plaintiffs had given specific content as what it would mean to provide adequate caseload staffing or adequate monitoring by relying on the COA and CWLA standards, the district court found “the injunctive relief is set forth in enough concrete manageable detail that the court could at least conceive of an injunction that would satisfy the requirements of both Rule 23(b)(2) and Rule 65(d).”
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careful and detailed explanation of Rule 23(b)(2)’s requirements as set forth in Shook II, it did quote that precise language of Rule 23(b)(2). We refuse to find an abuse of discretion where the district court is accused of not talismanically reciting Rule 23(b)(2)’s exact language in applying the law to the facts when it clearly understood the law it was required to apply and accurately applied it. Implicit in the district court’s conclusion that the imposition of caseload limits would apply to the entire class is the conclusion that all class members by virtue of living in OKDHS’s foster care are subject to OKDHS’s alleged policy or practice of either assigning excessive caseloads or failing to ensure caseworkers are not carrying excessive caseloads. Thus, the district court found that at least one of Named Plaintiffs’ requested injunctions remedies OKDHS’s conduct based on grounds generally applicable to the class.
Defendants contend they presented evidence that the caseloads of caseworkers in rural areas were not excessive and that OKDHS caseworkers for the most part make their required visits. Defendants therefore maintain the district court “could not have found these issues to have been generally applied to the class as a whole.” They also claim this same evidence demonstrates Plaintiffs failed to prove all class members suffered sufficiently similar injuries at the hands of OKDHS to satisfy Rule 23(b)(2)’s cohesiveness requirement. These arguments misunderstand what Rule 23(b)(2)’s “generally applicable” and cohesiveness requirements demand. First, Rule 23(b)(2) does not require Named Plaintiffs to prove OKDHS’s controverted policies
20

Case: 09-5093 Document: 01018362826 Date Filed: 02/08/2010 Page: 22
or practices actually harm or impose a risk of harm upon every class member at the class certification stage. As explained above, certification is appropriate even if the defendant’s action or inaction “has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2), 1966 Amendment advisory committee note (emphasis added). That a class possibly or even likely includes persons unharmed by a defendant’s conduct should not preclude certification. Kohen, 571 F.3d at 677. So long as OKDHS’s challenged practices are based on grounds that apply generally to the class, class certification under Rule 23(b)(2) is proper even if at the class certification stage it is conceivable some class members have not been actually abused, neglected, or exposed to a risk of harm. Here the “grounds” that have general application to the class are that all class members have been placed in OKDHS’s foster care program and, as such, caseworkers monitor all class members in a system that allegedly fails to ensure they do not carry caseloads so demanding that they cannot monitor class members adequately. Second, Rule 23(b)(2) demands class members’ injuries alleged by Named Plaintiffs at the certification stage appear “sufficiently similar that they can be addressed in a single injunction that need not differentiate between class members.” Shook II, 543 F.3d at 604. Named Plaintiffs allege the same injury on behalf of all class members as a result of excessive caseloads—exposure to an impermissible risk of harm. And, the district court expressly found exposure to an impermissible risk of harm a fact issue
21

Case: 09-5093 Document: 01018362826 Date Filed: 02/08/2010 Page: 23
common to the entire class. To remedy this alleged harm, Named Plaintiffs propose an injunction requiring OKDHS assign no more than 15 foster children to each caseworker (based on CWLA standards). As the district court noted, such an injunction applies to the proposed class as a whole without requiring differentiation between class members. Because the district court properly applied the law to the alleged facts, we conclude Defendants’ challenge of the district court’s Rule 23(b)(2) findings is without merit.
III. The district court’s decision comports with Rule 23, our governing case law, and the alleged facts. Therefore, the district court did not abuse its discretion. We also note the district court’s present certification decision is a preliminary one. After the parties conduct classwide discovery, the district court may find that the class, in fact, does not meet the requirements of Rule 23(a) or that more of Named Plaintiffs’ requested remedies or none at all meet Rule 23(b)(2)’s requirements. If the court so finds, it possesses the discretion under Rule 23(c)(1)(C) to amend its certification order to reflect its findings or decertify the class altogether prior to final judgment. Fed. R. Civ. P. 23(c)(1)(C); see also In re Integra Realty Resources, Inc., 354 F.3d 1246, 1261 (10th Cir. 2004). AFFIRMED.
22

 
 1

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF OKLAHOMA

3

4 D.G., by Next Friend G. Gail

)

Stricklin, et al., for themselves )

5 and those similarly situated,

)

)

6

Plaintiffs,

)

)

7 V.

) No. 08-cv-074-GKF-FHM

)

8 C. BRAD HENRY, in his official

)

capacity as Governor of the

)

9 State of Oklahoma, et al.,

)

)

10

Defendants.

)

11

12

REPORTER'S TRANSCRIPT OF PROCEEDINGS

13

HAD ON MAY 5, 2009

14

MOTION HEARING - AN EXCERPT

15

16 BEFORE THE HONORABLE GREGORY K. FRIZZELL, Judge

17

18 APPEARANCES:

19 For the Plaintiffs: Mr. Paul DeMuro

Frederic Dorwart Lawyers

20

124 East Fourth Street

Tulsa, Oklahoma 74103

21

Ms. Marcia Lowry

22

Mr. Andrew B. Bauer

Mr. Jeremiah Frei-Pearson

23

Mr. William Kapell

Children's Rights

24

330 Seventh Avenue, 4th Floor

425 Park Avenue

25

New York, New York 10022

Glen R. Dorrough UNITED STATES COURT REPORTER

2

1 (APPEARANCES CONTINUED)

2 For the Plaintiffs: Mr. Joe Edwards

Day Edwards Propester & Chirstensen

3

210 West Park Avenue, Suite 2900

Oklahoma City, Oklahoma

4

For the Defendants: Ms. Donna M. De Simone

5

Riggs Abney Neal Turpen Orbison

& Lewis

6

502 West Sixth Street

Tulsa, Oklahoma 74119

7

Mr. Robert A. Nance

8

Riggs Abney Neal Turpen Orbison

& Lewis

9

5801 Broadway Extension, Suite 101

Oklahoma City, Oklahoma 73118

10

Ms. Catherine A. O'Leary

11

Department of Human Services

Assistant General Counsel

12

6128 E. 38th Street, Suite 300

Tulsa, Oklahoma 74135

13

-----

14

PROCEEDINGS

15

May 5, 2009

16

THE COURT: Be seated please. Before the Court is

17 plaintiffs' Motion For Class Certification found at document

18 number 4 in the Court's docket. The Court having reviewed the

19 pleadings of the parties and having heard argument of counsel

20 finds as follows:

21

The named plaintiffs in this case are eight children

22 in foster care in Oklahoma. They have sued the nine members of

23 the Oklahoma Commission for Human Services - the body

24 responsible for formulating the policies and adopting the rules

25 and regulations for the administration of the Oklahoma

3

1 Department of Human Services - and the director of DHS himself

2 in their official capacities. Plaintiffs allege policies and

3 practices of DHS regarding the state's foster care program

4 violate their 14th Amendment right to substantive due process,

5 their Fifth and Fourteenth Amendment rights to procedural due

6 process, and liberty and privacy interests protected by the

7 First, Ninth and Fourteenth Amendments.

8

Plaintiffs seeks certification of the following class:

9

All children who are or will be in the legal custody

10 of the Oklahoma Department of Human Services, number one, due

11 to a report or suspicion of abuse or neglect, or two, who are

12 or will be adjudicated deprived due to abuse or neglect.

13

Plaintiffs in their Statement of Relief Sought found

14 at document number 241 seek seven remedies summarized as follows:

15

Number one, caseloads: Limits on the caseloads of all

16 case carrying workers and supervisors based on standards for

17 accreditation of public child welfare agencies set by the

18 Council on Accreditation, the COA, and professional standards

19 set by the Child Welfare League of America, the CWLA. The CWLA

20 standards call for a caseload size for family foster care

21 social workers of between 12 to 15 children per worker, and for

22 supervisors to supervise no more than five social workers. The

23 COA recommends that caseloads generally not exceed 18 children

24 or eight children with special therapeutic needs.

25

Number two, education and training: The imposition of

4

1 educational qualifications requirements for caseworkers and

2 supervisors and implementation of comprehensive pre-service and

3 in-service training programs for caseworkers, supervisors,

4 foster parents and adoptive parents based on standards for

5 training established by the COA and CWLA.

6

Number three, availability of necessary resources for

7 placement of children: An assessment by qualified professionals.

8 to determine, number one, the need for additional placements to

9 provide the necessary range of placement options for children

10 in the custody of DHS; number two, the time period during which

11 these placements will be developed; and number three, the steps

12 necessary to develop these placements.

13

Number four, monitoring the safety of children in

14 placement: Implementation of mandatory schedules for DHS

15 workers to visit all children in placement and their foster

16 parents, in accordance with COA standards. Mandatory

17 compliance with regulations of the Oklahoma Administrative

18 Code, the OAC, for investigating complaints of abuse and

19 neglect of children in placement, and mandatory compliance with

20 OAC standards and processes for the approval, screening,

21 oversight and utilization of all placement types that house

22 foster children.

23

Number five, outcomes for children: An order

24 requiring DHS shall meet the outcome measures set by the U.S.

25 Department of Health and Human Services, the DHHS, including,

5

1 for example, DHHS measures aimed at protecting foster children

2 from abuse and neglect, ensuring permanency and stability in

3 their living situations and preserving the continuity of family

4 relationships and connections.

5

Number six, quality assurance data: An order

6 requiring DHS to ensure that it has a quality assurance system

7 consistent with the standards of the COA and CWLA that is

8 capable of measuring the quality of treatment and services

9 provided to children in DHS custody.

10

And finally, number seven, monitoring and enforcement:

11 Plaintiffs seek Court appointment of a neutral monitor to

12 monitor the provisions of any Court order entered pursuant to

13 Rule 65(d)

14

Now under Rule 23 of the Federal Rules of Civil

15 Procedure the Court may certify a class if the purported class

16 meets four requirements set out in subsection (a) of the rule

17 and also meets the requirement of one of the types of classes

18 described in subsection (b) of the rule. The requirements of

19 Rule 23(a) are numerosity, commonalty of questions of fact or

20 law between the named plaintiffs and the class, typicality of

21 named plaintiffs' claims and defenses to those of the class,

22 and adequacy of the named plaintiffs and their attorneys as

23 class representatives. The particular type of class plaintiffs

24 seek to certify is set forth in Rule 23(b)(2), that is,

25 plaintiffs assert that defendants have acted or refused to act

6

1 on grounds that apply generally to the class so that final

2 injunctive relief or corresponding declaratory relief is

3 appropriate respecting the class as a whole.

4

Plaintiffs, as the parties seeking certification, bear

5 a strict burden of proving all the requirements of Rule 23(a)

6 have been met. Rex v. Owens ex rel, Oklahoma 585 F.2d 432 at

7 435, Tenth Circuit 1978.

8

The Court, in its analysis, must accept the

9 substantive allegations of complaint as true. Shook vs. El

10 Paso County, 386 F.3d 963 at page 968, Tenth Circuit 2004.

11

Whether a case should be allowed to proceed as a class

12 action involves intensely practical considerations, most of

13 which are purely factual or fact intensive. Reed vs. Brown,

14 849 F.2d 1307 at 1309, Tenth Circuit 1988.

15

Each case must be decided on its own facts on the

16 basis of practicalities and prudential considerations. Reed

17 vs. Brown again.

18

The class determination generally involves

19 considerations that are enmeshed in the factual and legal

20 issues comprising the plaintiffs' cause of action. General

21 Telephone Company of the Southwest vs. Falcon, 457 U.S. at 147

22 at page 160, 1982.

23

Therefore, while the Court is not to decide the case

24 on its merits, it should make whatever factual and legal

25 inquiries are necessary under Rule 23. Castano vs. American

7

1 Tobacco Company, 84 F.3d 734 at 744, Fifth Circuit 1996, and

2 Sazbo, S-A-Z-B-O vs. Bridgeport Machines, Inc., 249 F.3d, 672

3 at page 676, Seventh Circuit, 2001.

4

Further to the point, the Court stresses that its

5 decision today is in no way to be construed as a decision on

6 the merits. In keeping with the law cited above the Court has

7 made factual inquiries only to the extent necessary to comply

8 with the Rule 23 requirements for class certification. A

9 decision on the merits of plaintiffs' claims lies somewhere

10 down the road after discovery, motion practice and trial are

11 complete.

12

The Court makes the following findings regarding the

13 elements of 23(a):

14

Numerosity: Plaintiffs allege the class of children

15 in foster care due to abuse or neglect numbers in excess of

16 10,000. Defendants do not dispute the size of the class meets

17 the numerosity requirement. The Court finds, therefore, that

18 the numerosity element set forth in Rule 23(a)(1) is satisfied.

19

Commonality: Plaintiffs have asserted that there are

20 nine questions of fact and five questions of law common to all

21 of the children in the class. A finding of commonalty requires

22 only a single issue of fact or law common to the class. J.B.

23 vs. Valdez, 186 F.3d 1280 at page 1288, Tenth Circuit, 1999.

24 However, mere allegations of systemic failures of an agency

25 such as DHS will not suffice. J.B. vs. Valdez at pages 1288

8

1 and 1289. The Tenth Circuit will not allow plaintiffs, quote

2 "to broadly conflate a variety of claims to establish

3 commonalty via an allegation of systemic failures." End quote.

4 Also J.B. vs. Valdez at the same pages.

5

The class that plaintiffs seek to represent is quite

6 diverse. It's members range in age from infants to teenagers.

7 The reasons they end up in the foster care system vary widely.

8 Their placements range from emergency shelters to institutions,

9 to group homes, to placement with relatives, to placement with

10 unrelated foster care providers. Their needs vary widely.

11 Their lengths of stay in the foster care system are similarly

12 diverse. The ultimate outcome goals for these children vary.

13 Reunification with their birth families is the goal for some

14 while adoption is the goal for others. Their physical,

15 educational, and emotional needs are divergent. Many are

16 Native American children and thus special laws apply to them.

17 Some have been adjudicated not only as deprived, but as

18 juvenile delinquents.

19

Suffice it to say, as a result of the diversity of the

20 group, many of the questions of fact and law plaintiffs allege

21 to be common do not appear to be, in fact, common. A clear

22 example of this is the question of whether DHS has a policy or

23 practice of failing to arrange for and facilitate plaintiffs'

24 family relationships causing significant harm and risk of harm

25 to plaintiffs' health and well-being. Clearly, this is not

9

1 that fact issue common to all children in foster care because

2 the goal for many children is to terminate parental rights of

3 the biological family and place these children for adoption.

4 Similarly, the question whether DHS has a policy or practice of

5 subjecting plaintiffs to unreasonably frequent moves from

6 placement to placement causing significant harm and risk of

7 harm to plaintiffs' health and well-being is not common to all

8 children because many, perhaps the majority, of children in

9 foster care are not subjected to frequent moves.

10

However, the court finds at least one common issue of

11 fact: Whether DHS has a policy or practice of failing to

12 adequately monitor the safety of plaintiff children causing

13 significant harm and risk of harm to plaintiff children's

14 safety, health and well-being.

15

With respect to the adequate monitoring of foster

16 children's safety, the Court finds, based on evidence submitted

17 by the parties, that this is a fact issue common to all

18 children in the proposed class. The Court is not making any

19 finding that these children are all subjected to harm as a

20 result of DHS's monitoring practices. The Court is simply

21 finding that the issue of whether the monitoring practices

22 compromise the safety of foster children is an issue common to

23 the entire proposed class.

24

Additionally, it appears to the Court that this common

25 factual issue also raises at least one common legal issue,

10

1 specifically whether the alleged policies or practices violate

2 plaintiffs' right to be reasonably free from harm and imminent

3 risk of harm while in state custody. See Yvonne L. vs. New

4 Mexico Department of Human Services, 959 F.2d 883 at page 892

5 to 893.

6

Therefore, the Court finds the commonalty element set

7 forth in Rule 23(a)(2) has been met.

8

Typicality: Rule 23(a)(3) requires the claims of the

9 named plaintiffs to be typical of the claims of the class.

10 Obviously, issues of commonalty and typicality are closely

11 related, and as with the commonalty requirement, differing fact

12 situations of class members do not defeat typicality under Rule

13 23(a)(3) so long as the claims of the class representatives and

14 class members are based on the same legal or remedial theory.

15 Adamson vs. Bowen, 855 F.2d 668 at 676, Tenth Circuit 1988.

16

In a civil rights action such as this one typicality

17 does not require that the interest and the claims of the named

18 plaintiffs and the class members to be identical. Anderson vs.

19 City of Albuquerque, 690 F.2d 796 at page 800, Tenth Circuit,

20 1982.

21

As long as the class representatives' claims are not

22 significantly antagonistic to a class, typicality is established.

23 In re: Williams Companies ERISA Litigation, Northern District

24 of Oklahoma 2005.

25

While each named plaintiff and each potential class

11

1 member has his or her own unique background, story and

2 problems, the Court finds that the interests of the named

3 plaintiffs and the class member are not significantly

4 antagonistic.

5

Therefore, the typicality requirement of Rule 23(a)(3)

6 is satisfied.

7

Rule 23(b)(2) and Rule 65(d): Plaintiffs seek class

8 certification under Rule 23(b)(2), asserting that DHS has acted

9 or refused to act on grounds that apply generally to the class,

10 so that final injunctive relief or corresponding declaratory

11 relief is appropriate respecting the class as a whole. Rule

12 23(b), in turn, implicates Rule 65(d) which provides that every

13 order granting an injunction must state the reasons why it

14 issued, state its terms specifically, and describe in

15 reasonable detail, and not by referring to the complaint or

16 other documents, the act or acts to be restrained or required.

17 The tension between Rule 23(b)(2) and Rule 65(d) was examined

18 at length by the Tenth Circuit in the Tenth Circuit's recent

19 Shook II decision found at Shook vs. Board of County

20 Commissioner of County of El Paso, 543 F. 3d 597, Tenth

21 Circuit, 2008.

22

The Tenth Circuit stated in Shook II that Rule

23 23(b)(2) imposes two separate but related requirements: First,

24 the defendants' actions or inactions must be based on grounds

25 generally applicable to all class members. Second, the final

12

1 injunctive relief must be appropriate for the class as a whole.

2 The Tenth Circuit said that quote, "put differently, Rule

3 23(b)(2) demands a certain cohesiveness amongst class members

4 with respect no their injuries, the absence of which can

5 preclude certification." End quote. Found at page 604. The

6 court described the cohesiveness as follows: First, the class

7 must be sufficiently cohesive that any class-wide injunctive

8 relief can satisfy the limitations of Rule 65(d), namely the

9 requirement that it state its terms specifically and describe

10 in reasonable detail the act or acts restrained or required.

11 Second, a class action may not be certified under Rule 23(b)(2)

12 if relief specifically tailored to each class member would be

13 necessary to correct the allegedly wrongful conduct of each

14 defendant.

15

The court's ruling in Shook II cautions that

16 individual issues cannot be avoided simply by formulating an

17 injunction at a stratospheric level of abstraction, and

18 injunctions simply requiring defendants to obey the law are too

19 vague to satisfy Rule 65. The bottom line is that, at the

20 class certification stage where we are now, the injunctive

21 relief sought must be described in reasonably particular detail

22 such that the Court can at least conceive of an injunction that

23 would satisfy the requirements of both Rule 65(d) and Rule

24 23(b)(2). Shook II at pages 605 and 606.

25

Defendants argue that none of plaintiffs' proposed

13

1 remedies meet the requirements of Rule 23(b)(2) and Rule 65(d)

2 because they are too vague, unmanageable and/or inappropriate.

3 The Court agrees with defendants at least with respect to many

4 of the proposed remedies. Without ruling definitively the

5 Court can state that this Court is disinclined to enter an

6 injunction generally requiring DHS to obey Oklahoma statutes

7 and regulations because such an order would run afoul of Rule

8 65 and the Tenth Circuit's directives. The Court will also be

9 reluctant to order any type of relief incapable of description

10 in a sufficiently objective way that both the defendant and the

11 Court can determine whether the defendant is complying.

12

However, at least one remedy requested by plaintiffs

13 appears to pass the test set out in Shook II. Plaintiffs seek

14 an injunction setting limits on the caseloads of caseworkers

15 and their supervisors. While the Court does not necessarily

16 accept the propositions that the caseloads should be based on

17 standards set by the COA and the CWLA, as proposed by

18 plaintiffs, the injunctive relief is set forth in enough

19 concrete manageable detail that the Court can at least conceive

20 of an injunction that would satisfy the requirements of both

21 Rule 23(b)(2) and Rule 65(d). Plaintiffs assert in this

22 lawsuit that excessive caseloads are harming or putting at risk

23 of harm all children in the class. Imposition of caseload

24 limits would apply to the entire class. Thus, Rule 23(b)(2)'s

25 cohesiveness requirement is met. The Rule 65(d) requirement is

14

1 also met because an injunction setting caseload limits would

2 provide sufficient specificity and detail to escape the

3 vagueness prohibition.

4

In this vein, the Court would like to address an

5 argument raised by defendants in their briefing and in argument

6 today. Defendants take the position that plaintiffs must show

7 actual injury in order to seek injunctive relief and that a

8 determination must be made that each and every plaintiff in the

9 class must show actual injury before they are entitled to an

10 injunction. In support of these propositions defendants cite

11 the Vallario vs. Vandehey decision at 545 F.3d 1259, at page

12 1268 note 7, Tenth Circuit 2009, and Tandy vs. City of Wichita,

13 380 F.3d 1288 at page 1283, Tenth Circuit 2004. The defendants

14 are mistaken in two respects. First, under Tandy, in order to

15 establish standing named plaintiffs must show an injury in fact

16 that is actual or imminent. However, in Tandy the court said

17 that if plaintiffs seek prospective relief as opposed to

18 retrospective relief, the plaintiffs must show they are

19 suffering a continuing injury or be under a real and immediate

20 threat of being injured in the future. Further, the court held

21 in Tandy that quote, "Past wrongs are evidence bearing on

22 whether there is a real and immediate threat of repeated

23 injury." End quote. Found at 380 F.3d at 1283. Moreover,

24 while named plaintiffs must show standing in order to proceed,

25 neither Vallario nor Tandy stand for the proposition that each

15

1 and every class member must go through the same process at this

2 point in this case, that is, in order to meet the requirements

3 for class certification.

4

Applying this test, six of the remaining eight

5 plaintiffs C.S., J.B. A.P., J.P., R.J., and G.C. allege

6 physical abuse, sexual abuse, and/or injury due to unsafe

7 conditions while in custody of DHS. The remaining two

8 plaintiffs, J.A. and K.T., do not actually allege physical

9 injury due to abuse or neglect in DHS custody, although I

10 believe in Ms. Lowry's argument today she asserted that K.T.

11 has in fact been subject to physical abuse. J.A., a 5-year old

12 boy, alleges that during the one year he had been in custody

13 before this suit was filed he had been shuffled through nine

14 different placements including institutional facilities, which

15 has led to a lack of adequate stability, treatment or care.

16 K.T., a 16 year old girl, alleges she has suffered from

17 developmental delays from being housed in inappropriate, unsafe

18 and poorly monitored emergency shelters and group homes.

19

The Court concludes that the allegations of the

20 remaining named plaintiffs satisfy the requirement regarding

21 injury in fact and imminent risk of injury and, therefore, the

22 Court must reject defendants' standing argument.

23

The question remains, given the Court's determination

24 as to allegation of shuffled placement doesn't meet the

25 commonalty requirement, whether J.A. should remain a member of

16

1 the class, but I'll leave that to you to suggest how to

2 proceed. And of course we're proceeding with discovery so I

3 don't know that it precludes discovery on the issue, but that

4 remains an issue to be wrestled with.

5

Examining the remedies proposed by plaintiffs, it is

6 clear that at least the caseload limit remedy meets the

7 requirements of Rule 23(b)(2) and Rule 65(d), that is, it

8 applies to the proposed class in a cohesive manner which would

9 not require the Court to look at each class member individually,

10 and at the same time it is specific and detailed enough that it

11 escapes the vagueness defect. In this case, in contrast to the

12 facts presented in Shook II, plaintiffs have given content to

13 what it would mean to provided adequate caseload staffing.

14 Thus, for purposes of today's hearing, plaintiffs have

15 satisfied Rule 65(d) by showing that caseload limits are

16 ultimately capable of description in a sufficiently objective

17 way that both the defendants and the Court can determine if the

18 defendants are complying.

19

Similarly, while this Court would be disinclined to

20 order DHS to quote, "obey the law," end quote, regarding

21 visitation and monitoring of foster children by caseworkers,

22 the Court can conceive of an injunction regarding visitation

23 and monitoring, if warranted by the evidence in a trial on the

24 merits, that would meet the cohesiveness mandate of Rule

25 23(b)(2) and still be specific enough to satisfy Rule 65(d).

17

1

The Court is less convinced that the remaining

2 requests for relief meet the requirements of Rule 23 and Rule

3 65. However, the Court makes no conclusive rulings about

4 remedies today other than that with respect to plaintiffs'

5 class certification motion, the remedy dealing with caseload

6 limits and the remedy dealing with monitoring of children in

7 foster care, appear to meet the requirements of these two

8 rules. Therefore, this Court concludes that certification of

9 the class requested by plaintiffs is appropriate.

10

For these reasons, plaintiffs' motion to certify,

11 document number 4, is granted and the Court hereby certifies

12 under Rule 23 the following class:

13

All children who are or will be in the legal custody

14 of the Oklahoma Department of Human Services (1) due to a

15 report or suspicion of abuse or neglect, or (2) who are or will

16 be adjudicated deprived due to abuse or neglect.

17

Counsel, if you-all would approach.

18

(Off-the-record sidebar conference out of hearing of

19 open court and the court reporter.)

20

THE COURT: Ms. Lowry, with regard to exhibits?

21

MS. LOWRY: Yes. Your Honor, I neglected to ask the

22 Court to receive the dispositives that I used during the

23 argument and so I would ask that they be made a part of the

24 record.

25

THE COURT: Very well. And how are those marked?

18

1

MS. LOWRY: They are numbered 1 through 11.

2

THE COURT: Very well. Any objection?

3

MR. NANCE: No, Your Honor.

4

THE COURT: Very well, Plaintiff's 1 through 11 are

5 admitted.

6

In addition, the Court needs to make the following

7 conclusion with regard to Rule 23(a)(4), and I apologize for

8 reading the order, but it's necessary to satisfy the legal

9 requirements that are set forth by the Tenth Circuit, and

10 there's one additional matter that the Court needs to touch

11 upon. Rule 23(a)(4) requires a two-part inquiry. Number one,

12 do the named plaintiffs and their counsel have any conflicts of

13 interest with other class members; and number two, will the

14 named plaintiffs and their counsel prosecute the action

15 vigorously on behalf of the class? See Rutter & Wilbanks

16 Corporation vs. Shell Oil Company, 314 F.3d 1180, at pages 1187

17 to 1188, Tenth Circuit, 2002. In this case there appears to be

18 no dispute regarding those two matters regarding counsel, as to

19 conflict of interest or their ability to prosecute the action

20 vigorously. Is there anything further?

21

MS. LOWRY: Not from plaintiffs, Your Honor.

22

THE COURT: Mr. Nance.

23

MR. NANCE: No, Your Honor. You are entering a

24 written order in keeping with what you said or is this the

25 ruling?

19

1

THE COURT: Well, this would be the ruling. The

2 question may arise whether or not we ought to simply rewrite

3 what I just read. You can certainly get it from Glen here.

4 Basically it would not differ whatsoever from what I just read,

5 so I think it's been adequately set forth on the record. There

6 may be some debate about that but...

7

MR. NANCE: Thank you, Your Honor. And nothing

8 further from us.

9

THE COURT: Very well. If there's nothing further

10 we'll be adjourned.

11

(Recess.)

12

13

A TRUE AND CORRECT TRANSCRIPT.

14

15

CERTIFIED: s/ Glen R. Dorrough

Glen R. Dorrough

16

United States Court Reporter

17

18

19

20

21

22

23

24

25

 
 Case 4:08-cv-00074-GKF-FHM Document 220 Filed in USDC ND/OK on 01/20/2009 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G. by Next Friend G. Gail Stricklin, et al., )

)

Plaintiffs,

)

)

vs.

)

)

C. BRAD HENRY, in his official capacity as )

Governor of the State of Oklahoma, et al.,

)

)

Defendants.

)

Case No. 08-CV-074-GKF-FHM

OPINION AND ORDER This matter comes before the court on defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction. [Doc. No. 77]. On January 7, 2009, the court denied the motion with respect to all causes of action except plaintiffs’ third and fifth causes of action. The court took the motion under advisement with respect to these causes of action. For the reasons set forth below, defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction is granted with respect to plaintiffs’ third and fifth causes of action. Plaintiffs’ third cause of action is a Section 1983 claim arising from alleged violations of the federal Adoption Assistance and Child Welfare Act of 1980 (“AACWA”), 42 U.S.C. §621 et seq. Plaintiffs’ fifth cause of action is a common law claim for breach of alleged third party beneficiary rights arising from the AACWA.
Plaintiffs’ Third Cause of Action–Violations of AACWA In their third cause of action, plaintiffs allege the policies and practices of the defendants have deprived them of rights conferred by AACWA and regulations promulgated thereunder. Specifically, they allege:

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1. Plaintiffs are entitled to timely written case plans containing mandated elements and to a case review system to ensure implementation of those plans. [citing 42 U.S.C. §§622(b)(8)(A)(ii); 671(a)(16); 675(1) and 675(5)(A)].
2. Plaintiffs have a right to have a petition to terminate parental rights filed or have compelling reasons document why such petition has not been filed, in accordance with specified statutory standards and time frames. [citing 42 U.S.C. §§622(b)(8)(A)(ii); 671(a)(16); 675(5)(E); 675 note; and 45 C.F.R. §1356.21(i)].
3. Plaintiff children whose permanency goal is adoption have an enforceable right to planning and services to obtain a permanent placement including documentation of steps taken to secure permanency. [citing 42 U.S.C. §§622(b)(8)(A)(ii); 622(b)(8)(A)(iii)(II); 671(a)(16); 675(1)(E); 675(5)].
4. Plaintiff children have an enforceable right to services that protect their safety and health. [citing 42 U.S.C. §§622(b)(15); 671(a)(22); 675(1)(B); 45 C.F.R. §1357.10(c)(5)].
5. Plaintiff children have an enforceable right to have health and educational records reviewed, updated and supplied to foster parents or foster care providers with whom they are placed, at the time of the placement. [citing 42 U.S.C. §§622(b)(8)(A)(ii); 671(a)(16); 675(1)(C); 675(5)(D)].
6. Plaintiff children have an enforceable right to live in foster placements that have the capacity to provide for their essential needs and services by receiving adequate foster care maintenance payments that cover the actual cost of (and the cost of providing) plaintiff children’s food, clothing, shelter, daily supervision, school supplies, reasonable travel to visitation with family and other expenses. [citing 42 U.S.C. §§671(a)(1), 671(a)(11), 671(a)(22), 672(a)-(c); 675(4)(A) and 45 C.F.R. §§1355.20(a), 1356.21(m)(1)].
A. Requirements for Finding a Statute Creates a Private Cause of Action
Section 1983 imposes liability upon anyone who, under color of state law, deprives a
person “of any rights, privileges, or immunities secured by the Constitution and laws.” To seek
redress through Section 1983, a plaintiff must assert a violation of a federal right, not merely a
violation of federal law. Blessing v. Freestone, 520 U.S. 329, 340 (1997). In Blessing, the
Supreme Court set forth three criteria necessary to finding that a statutory provision gives rise to
a federal right: (1) Congress must have intended that the provision in question benefit the
2

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plaintiff; (2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence; and (3) the statute must unambiguously impose a binding obligation on the States. Id. at 340-41. See also, Mandy R. v. Owens, 464 F.3d 1139, 1146-47 (10th Cir. 2006).
In Gonzaga University v. Doe, 536 U.S. 273, 283-84 (2002), the Supreme Court tightened the first requirement, holding that an enforceable private right exists only if the statute contains nothing “short of an unambiguously conferred right” and not merely a vague benefit or interest. The court in Gonzaga emphasized that in cases brought to enforce legislation enacted pursuant to the spending power of Congress, Congress must “speak with a clear voice” and manifest an “unambiguous” intent to confer individual rights before federal funding provisions will be read to provide a basis for private enforcement. Id. at 280. “In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Id., citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981).
The court in Gonzaga held that the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g, did not create a private right of action under §1983. In FERPA, Congress explicitly directed the Secretary of Education to withhold federal funding from states with a policy or practice of permitting the unauthorized release of education records or personal information. 20 U.S.C. §1232g(b)(1). 536 U.S. at 287. The court contrasted this with the language of Titles VI of the Civil Rights Act of 1964 (“no person...shall...be subjected to discrimination under any program or activity receiving Federal Financial Assistance”) and Title
3

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IX of the Education Amendments of 1972 (“No person...shall, on the basis of sex, ... be subjected to discrimination under any education program or activity receiving Federal financial assistance”), both of which create enforceable private rights. Id. at 284, n. 3. “Unlike the individually focused terminology of Titles VI and IX...FERPA’s provision speak only to the Secretary of Education...This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of “individual entitlement” that is enforceable under §1983.” Id. (citations omitted).
The court in Gonzaga also noted that FERPA’s nondisclosure provisions “speak only in terms of institutional policy and practice, not individual instances of disclosure...they have an “aggregate” focus...they are not concerned with whether the needs of any particular person have been satisfied, and they cannot give rise to individual rights.” Id. at 288 (citations omitted). Finally, the court held that the mechanism Congress chose to provide for enforcing those provisions buttressed its conclusion that FERPA’s nondisclosure provisions fail to confer a private right of action: “Congress expressly authorized the Secretary of Education to ‘deal with violations’ of the Act...and required the Secretary to ‘establish or designate [a] review board’ for investigating and adjudicating such violations.” Id. at 289.
After Gonzaga, the Tenth Circuit has applied the more stringent test to determine that the “sufficient payments” section of the Medicaid Act [42 U.S.C. §1396a(a)(30)(A)] does not create an enforceable private right of action, Mandy R., 464 F.2d at 1147, and that a federal statute limiting illegal aliens’ eligibility for higher education benefits [8 U.S.C. §1623] does not create a private right of action. Day v. Bond, 500 F.3d 1127, 1139 (10th Cir. 2007).
Post-Gonzaga, the Tenth Circuit has not addressed whether any provisions of the
4

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AACWA create a private right of action.1 However, in 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), the Eleventh Circuit found that §§675(5)(D) and (E) of the AACWA–two of the provisions plaintiffs in this case rely upon–do not confer a private right of action enforceable under 42 U.S.C. §1983. The court noted that the AACWA–like FERPA in the Gonzaga case–is a federal funding statute. Id. at 1270. For a state to receive funds, it must satisfy certain requirements, including submission of a State Plan for foster care and adoption assistance. Id. citing 42 U.S.C. §671(a). If a state follows its approved plan, it receives federal funds. Id. citing 42 U.S.C. §670; 42 U.S.C. §1320a-2a. If a state fails to follow its approved plan, it may lose all or some of the federal funds it otherwise would receive. Id. The Secretary is required to promulgate regulations for use in reviewing state programs in order to determine whether they are in substantial conformity with the state plan. Id. The regulation must require the Secretary to withhold federal funds if a state has failed to substantially conform to its approved plan, and the regulations do exactly that. Id., citing 42 U.S.C. §1320a-2a(b)(3), 45 C.F.R. §§1355.35(c)(4), 1355.36(b).
Citing Gonzaga, the court in 31 Foster Children pointed out that §675(5)(D) and (E) are definitional in nature and there cannot, alone, supply a basis for conferring rights enforceable under §1983. Id. at 1271. The court noted that other than the definition of “case review system,” the only provision in Part E of Title IV that uses the term is 42 U.S.C.
1Pre-Gonzaga, , in Yvonne L. v. New Mexico Department of Human Services, 959 F.2d 883, 889 (10th Cir. 1992), the Tenth Circuit held “that individual causes of action [under AACWA] may be appropriate, depending upon the particular section or violation involved.” However, the court concluded plaintiffs’ contentions that defendants had failed to comply with 42 U.S.C. §671(a)(1) and the alleged facts supporting those contentions were insufficient to defeat summary judgment on their claim. Id.
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§671(a)(16)–another provision relied upon by plaintiffs in this case. That section conditions receipt of federal funds on implementation of a State Plan that, among other things, provides for “a case review system which meets the requirements of section 675(5)(B)...with respect to each such child.” However, the court pointed out, §671(a)(16) does not condition receipt of federal funds on compliance with either §675(5)(D) or (E). “The conclusion we reach is that Congress knew how to require compliance with all aspects of a case review system, as described in §676(5), when it wanted to do so. It did not choose to do so in §671(a)(16).” Id. at 1271-72.
The court in 31 Foster Children also concluded §§675(5)(D) and (E) “do not have the kind of focused-on-the individual, rights-creating language required by Gonzaga. Instead, the language of those provisions gives them an aggregate or system wide focus instead of one that indicates concern with whether the needs of any particular child are met.” Id. at 1272.
B. Analysis As noted by the court in 31 Foster Children, the AACWA, 42 U.S.C. §§621 et seq., is a federal funding statute that establishes a program of payments to states for foster care and adoption assistance. The typical remedy for state noncompliance with such a statute is not a private cause of action for noncompliance but rather action by the federal government to terminate funds to the state. Gonzaga, 536 U.S. at 280. The AACWA, in fact, directs the Secretary to promulgate regulations for the review of state operations to determine whether they are in “substantial conformity” with State Plans and to withhold federal funds if they are not. 42 U.S.C. §1320a-2a. Therefore, as instructed in Gonzaga, Congress must “speak with a clear voice” and manifest an “unambiguous” intent to confer individual rights before federal funding provisions will be read to provide a basis for private enforcement. 536 U.S. at 280.
6

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Plaintiffs urge the court to conclude, based on repeated us of the words “child” and “children,” that the AACWA creates a private right of action for foster children. However, applying the inquiry mandated by Gonzaga, the court must conclude otherwise. The court has reviewed every provision of the AACWA relied upon by plaintiffs.2 None convince the court that Congress has “with a clear voice” manifested an unambiguous intent to confer individual rights. Certainly the provisions are unlike Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972. Rather, the provisions of the AACWA impose on states requirements that are institutional and aggregate in nature.3
1. Right to Timely Written Case Plans Containing Mandated Elements and to a Case Review System to Ensure Implementation of those Plans. The AACWA requires State Plans to include a case review system for the review of each foster child [42 U.S.C. §622(b)(8)(A) (ii)] that meets specific requirements [42 U.S.C. §675(5)(A)] and to provide for development of a case plan for each child [42 U.S.C. §671(a)(16)] which contains specific required elements [42 U.S.C. §675(1)]. Plaintiffs argue these statutes therefore confer a privately enforceable right to timely written case plans containing mandated elements. However, a review of these statutes fails to convince the court that Congress has “with a clear voice” manifested an unambiguous intent to confer individual
2Plaintiffs also rely upon regulations enacted pursuant to the AACWA. The regulations–being outside the scope of the text of the statutes themselves–do not aid the court in determining whether Congress intended, in passing the legislation, to confer a private right of action. Nevertheless, the court has reviewed the regulations and finds that they contain no “rights creating” language required by Gonzaga.
3Plaintiffs rely on 42 U.S.C. §675 and/or its subsections for every right asserted under AACWA. As noted by the court in 31 Foster Children, §675 is definitional in nature and therefore cannot supply a basis for conferring rights under §1983. 329 F.3d at 1271 (citing Gonzaga, 536 U.S. at 280 and Charlie H. v. Whitman, 83 F.Supp.2d 476, 490 (D.N.J. 2000).
7

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rights. Certainly, none of these provisions are like Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972. Rather, these provisions impose upon states the requirement to adopt State Plans that have specific elements. Thus, the court believes these provisions are institutional and aggregate in nature.
2. Right to Have a Petition to Terminate Parental Rights Filed or Have Compelling Reasons Document Why Such Petition has not been Filed, in Accordance with Specified Statutory Standards and Time Frames The case review systems of the State Plans [42 U.S.C. §622(b)(8)(A)(ii)] must have a procedure assuring that, in the case of a child who has been in foster care for 15 of the most recent 22 months or has been found by a court of competent jurisdiction to be an abandoned infant, or whose parent has committed murder or voluntary manslaughter of or felony assault upon another child of the parent, or the other parent, the state will file a petition to terminate the parental rights of the child’s parents and concurrently to identify, process, and approve a qualified family for an adoption or document reasons why the filing of a petition would be in the best interest of the child. [42 U.S.C. §675(5)(E)]. The procedure for determining when a petition to terminate parental rights must be filed is set forth in 5 C.F.R. §1356.21(i). Section 675(5)(E), much like §§675(1) and 675(5)(A), does not manifest an unambiguous intent to confer individual rights. Rather, it is part of a listing of specific elements the State Plans are required to cover. The court finds that AACWA does not create an individual right to sue under §1983 for a state’s failure to comply with this provision.
3. Right of Plaintiff Children Whose Permanency Goal is Adoption to Planning and Services to Obtain Permanent Placement The AACWA requires State Plans to provide for a service program designed to help
8

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children either to be returned to families from which they have been removed, where safe and appropriate, or placed for adoption, with a legal guardian or other permanent living arrangement. [42 U.S.C. §§622(b)(8)(A)(iii)(I) and (II)]. A case plan must be developed for each child. [42 U.S.C. §§671(a)(16) and 675(5)]. The case plan for children with respect to whom the permanency program is determined to be adoption or placement in another permanent home must include documentation of the steps the agency is taking to adopt or place the child. [42 U.S.C. §675(1)(E)].
Once again, these statutes deal with the requirements of the State Plans. The State Plans must have a service program which, among other things, helps with adoption or other permanent placement of children, and the case plans have to document efforts to achieve this goal. However, there is no language that manifests unambiguous intent to confer a private right of action.
4. Right to Services that Protect Safety and Health The AACWA requires that State Plans describe how the state “actively consults with and involves physicians and other appropriate medical professionals” in assessing the health and well-being of foster children and determining appropriate medical treatment for them. [42 U.S.C. §622(b)(15)]. The case plan developed for each child [42 U.S.C. §671(a)(22)] must include “a plan for assuring that the child receives safe and proper care” and addressing the needs of the child in foster care. [42 U.S.C. §675(1)(B)]. Federal regulations also state that one purpose of child welfare services is to assure adequate care of children away from their homes where the child cannot be returned home or cannot be place for adoption. 45 C.F.R. §1357.10(c)(5). These provisions set out yet another requirement of the State Plans and describe another
9

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required element of the case plans for foster children. There is no clear, unambiguous expression of Congressional intent to confer individual rights.
5. Right to Have Health and Education Records Reviewed, Updated and Supplied to Foster Parents or Foster Providers
The AACWA requires that State Plans have case review systems [42 U.S.C. §622(b)(8)(A)(ii)] and case plans for each child [42 U.S.C. §671(a)(16)] that contain the health and education records of the child [42 U.S.C. §675(1)(C)] and the case review system must assure that the health and education records are supplied to the foster parent or foster care provider at the time of each placement. [42 U.S.C. §675(5)(D)].
This clearly does not confer any private right of action to plaintiff children.4 Rather, it is but another requirement of State Plans.
6. Right to Live in Foster Placements That Have the Capacity to Provide for Essential Needs and Services by Receiving Adequate Foster Care Maintenance Payments
The AACWA requires that State Plans provide for foster care maintenance payments in accordance with §672 of the act and for adoption assistance in accordance with §673 of the act [42 U.S.C. §671(a)(1)]. The State Plans must provide for periodic review of the amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness. [42 U.S.C. §671(a)(11)]. The State Plans must also provide for granting an opportunity for a fair hearing before the state agency to any individual whose claim for benefits available pursuant to the statute is denied or not acted upon with reasonable promptness. [42
4Section 675(5)(D) also provides that the health and education records are to be supplied to the child at the time the child leaves foster care by reason of having reached the age of majority. This is the only statutory language in the AACWA the court is aware of that appears to confer a direct right to foster children. Plaintiffs, all of whom are minors, have not asserted any such right.
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U.S.C. §671(a)(12)]. Section 672 sets out the requirements for states’ foster care maintenance payments programs. [42 U.S.C. §672]. The term “foster care maintenance payments” is defined to cover the cost of food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance and reasonable travel to the child’s home for visitation. [42 U.S.C. §675(4)(A)]. In the case of institutional care, the term includes the reasonable costs of administration and operation of the institution as are necessarily required to provide these items. [Id.]. Definitions of “foster care maintenance payments,” “foster family care,” and “child care institutions” are set forth in 45 C.F.R. §1355.20(a). Regulations also require periodic reviews by the states of the appropriateness of foster care maintenance payments. [45 C.F.R. §1356.21(m)(1)].
However, nowhere in the provisions cited by plaintiff is there language suggesting a clear Congressional intent to confer a private right of action on foster children. Instead the statutes once again set out the requirements of state plans and state foster care maintenance payment programs.
C. Conclusion Regarding Creation of Private Rights Plaintiffs cannot meet the first prong of the analysis set forth in Blessing as modified by Gonzaga. None of the statutory provisions of AACWA cited by plaintiffs indicates Congress has spoken clearly to manifest an intent to confer rights on individual plaintiffs under §1983.5 Mandy, 464 F.3d at 1148. Therefore, analysis of the remaining two prongs of the private right of
5The court has also reviewed the following provisions cited by plaintiffs in ¶246 of their complaint as supporting their third cause of action, but not cited in plaintiffs’ brief in opposition to defendants’ motion to dismiss: 42 U.S.C. §§629a(a)(1)(A)(i)-(ii), 629a(a)(7)-(8); 45 C.F.R. §1355.25; 45 C.F.R. §1356.21(f)-(g); 45 C.F.R. §1357.10(c)(4) and (6). None of these provisions contains language creating individual rights.
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action test is unnecessary. Defendants are entitled to dismissal of plaintiffs’ third cause of action.
Plaintiffs’ Fifth Cause of Action–Third Party Beneficiary Rights Under AACWA
Plaintiffs, in their Fifth Cause of Action, characterize the State Plans between the federal government and states as “contracts” and contend that they are third party beneficiaries of the “contracts.” Defendants, in their motion to dismiss, challenge the characterization of the State Plans as “contracts,” and deny plaintiffs are third party beneficiaries of the State Plans.
The parties dispute whether state common law or federal common law governs the issue of third party beneficiary rights, with defendants taking the position that the former controls and plaintiffs alleging the latter controls. The court concludes federal common law should be applied because plaintiffs’ claim arises from a federal statute. See D’Amato v. Wisconsin, 760 F.2d 1474, 1479 (7th Cir. 1985).
However, whether state common law or federal common law governs, the third party beneficiary issue is inextricably linked with the question of whether the AACWA creates a private right of action. In Hodges v. Atchison, Topeka and Santa Fe Railway Company, 728 F.2d 414 (10th Cir. 1984), the court considered claims by a discharged railroad employee that the Rehabilitation Act of 1973 conferred a private right of action and that he was a third party beneficiary under act. The court, after analyzing the language of the statute, concluded no private right of action was created by it. Id. at 416. Having concluded no private right of action existed, the court held that the third party beneficiary claim was “but another aspect of the implied right of action argument,” and denied the claim. Id.
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Case 4:08-cv-00074-GKF-FHM Document 220 Filed in USDC ND/OK on 01/20/2009 Page 13 of 13 Similarly, in this case the viability of the third party beneficiary claim depends on a
finding that the AACWA confers upon plaintiffs some private right of action. The court has concluded it does not. As in Hodges, the third party beneficiary claim is but another aspect of the implied right of action, and must fall with that claim.
Conclusion For the reasons set forth above, defendants’ motion to dismiss [Doc. No. 77] is granted in part. Plaintiffs’ third and fifth causes of action are hereby dismissed. The motion is denied with respect to plaintiffs’ remaining causes of action. ENTERED this 19th day of January, 2009.
13

 
 UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

1. D.G., by Next Friend G. Gail Stricklin;

)

2. C.S., by Next Friend Barbara Sears;

)

FILED

3. J.B., by Next Friend Buddy Faye Foster;

)

4. A.P., by Next Friend Leslie A. Ellis Kissinger; )

FEB I 3 2008

5. J.A., by Next Friend Buddy Faye Foster;

)

6. J.P., by Next Friend G. Gail Stricklin;

)

7. R.J., by Next Friend Paul Naylor;

)

Phil lombardi, Clerk
U.S. DISTRICT COURT

8. G.C., by Next Friend Anne Sublett; 9. K.T., by Next Friend Barbara Sears, for themselves and those similarly situated,
Plaintiffs, v.

)

) )

. --

- _..... I

) 08 CV - 07 4 GKF FIlM

)

1. C. BRAD HENRY, in his official capacity as

) Class Action

Governor of the State of Oklahoma;

) Civil Action No.

2. RICHARD L. DEVAUGHN, in his official

)

capacity as Chairman of the Oklahoma

) COMPLAINT FOR

Commission for Human Services;

) INJUNCTIVE AND

3. RONALD L. MERCER, in his official capacity ) DECLARATORY RELIEF

as Vice-Chairman of the Oklahoma Commission ) AND REQUEST FOR CLASS

for Human Services;

) ACTION

4. WAYNE CUNNINGHAM, in his official

)

capacity as a member of the Oklahoma

)

Commission for Human Services;

)

5. JAY DEE CHASE, in his official capacity as a )

member of the Oklahoma Commission for

)

Human Services;

)

6. PATRICE DILLS DOUGLAS, in her official

)

capacity as a member of the Oklahoma

)

Commission for Human Services;

)

7. MICHAEL L. PECK, in his official capacity as a )

member of the Oklahoma Commission for

)

Human Services;

)

8. GAROLDINE WEBB, in her official capacity as )

a member of the Oklahoma Commission for

)

Human Services;

)

9. ANETA F. WILKINSON, in her official capacity )

as a member of the Oklahoma Commission for )

Human Services;

)

10. REV. GEORGE E. YOUNG SR., in his official )

capacity as a member of the Oklahoma

)

Commission for Human Services; and

)

11. HOWARD H. HENDRICK, in his official

)

capacity as Director of the Department of Human )

Services,

)

Defendants.

)

TABLE OF CONTENTS
Page No.
I. Introduction.......................................................................................................................... 1
II. Jurisdiction and Venue.........................................................................................................5
III. The Parties ...........................................................................................................................5
A. The Named Plaintiffs ...............................................................................................5
B. The Defendants ...................................................................................................... 10
IV. Class Action Allegations.................................................................................................... 12
V. Dangerous Failures in Oklahoma's Foster Care System Have Been Documented for Over Ten Years, Yet DHS Has Failed to Ameliorate Them or Implement Necessary Refonn ............................................................................................... 16
VI. Failures in the Operation of the Oklahoma Foster Care System .......................................21
A. Plaintiff Children Are Victimized While in DHS Custody ...................................21
B. DHS Houses Plaintiff Children in Dangerous and Inappropriate Placements That Fail to Provide Adequate Protection or Meet Their Needs ........24
I. DHS's Failure to Develop and Maintain a Sufficient Number and Array of Foster Care Placements ...............................................................24
2. DHS Unnecessarily Institutionalizes Plaintiff Children in Dangerous and Inappropriate Emergency Shelters for Extended Periods of Time..........................................................................................25
3. DHS Places Plaintiff Children in Dangerous and Inappropriate Homes and Facilities While in DHS CUstody............................................28
4. DHS Frequently Moves Children From One Inappropriate Placement to Another, Causing Them Severe Emotional and Psychological Harm ...................................................................................30
5. DHS Prevents Plaintiff Children From Maintaining Critical Family Ties While in State Custody ......................................................................32
C. DHS's Failure to Adequately Monitor the Safety of Children in DHS Custody Subjects Plaintiff Children to Harm or Imminent Risk ofHarm.............33
i

1. Excessive Caseloads, Inexperienced Caseworkers, Inadequate Supervision, High Turnover and Inadequate Training Threaten Basic Child Safety......................................................................................33
2. DHS's Dangerous Monitoring and Oversight Practices of Foster Homes and Facilities Harm Plaintiff Children and Expose Them to Imminent Risk of Harm .............................................................................35
D. Additional Dangerous Failings by DHS Subject Plaintiff Children to Harm or Imminent Risk of Harm.....................................................................................38 1. DHS Fails to Provide Adequate Foster Care Maintenance Payments for the Care of Plaintiff Children ..............................................38 2. DHS Fails to Plan for and Take Mandated Steps to Find Permanent and Safe Homes and Exits From State Custody for Plaintiff Children ...................................................................................................... 40 3. DHS Fails to Arrange Mental Health Services for Plaintiff Children ...................................................................................................... 41 4. Plaintiff Children Are Denied Adequate and Effective Legal Representation in the Juvenile Courts........................................................42 5. Breach of the Oklahoma State Plan Contracts Harms Plaintiff Children ...................................................................................................... 43
VII. Additional Factual Allegations Concerning Named Plaintiffs...........................................44 VIII. Causes of Action ................................................................................................................77 IX. Prayer for Relief.................................................................................................................85
11

I. Introduction I. This case is brought by the Named Plaintiffs, nine children in foster care,
on behalf of themselves and the more than 10,000 children of Oklahoma who have been removed from their homes by the State. These foster children, who are or will be in the legal custody of the Oklahoma Department of Ruman Services ("DRS"), bring this action because DRS, under the supervision of Defendants, who directly and indirectly control and are responsible for the administration of Oklahoma's foster care system, have failed in their basic and fundamental duty to provide for the safety and care of these Oklahoma citizens.
2. Children who require placement in foster care are the most vulnerable members of Oklahoma society. They are found in the four comers of the State; they come from cities, suburbs and rural areas.
3. In all cases, these children [md themselves in DRS custody as a result of desperate and extreme circumstances that threaten their ability to live normal childhoods, to grow and develop and, in many instances, to even survive. But as this Complaint alleges, DRS is victimizing its foster children. Rather than discharging its duty to keep the foster children in its custody reasonably free from harm, because of its pervasive, longstanding and welldocumented deficiencies in providing basic living situations, services and monitoring, DRS has harmed and continues to harm Oklahoma's foster children physically, emotionally and psychologically repeatedly and without any plan to end that harm, as set forth herein.
4. As just one stark example, Named Plaintiff C.S. has been in foster care since shortly after her birth, and in her eleven short months on this planet, DRS has placed her in seventeen different homes and facilities. While in foster care, she has suffered a fractured skull as a result of physical abuse in an unsafe foster home; she has suffered severe dehydration and
I

seizures as a result of neglect in an unsafe group facility; and she has suffered a severe illness as a result ofneglect in another unsafe foster home. Plaintiffs bring this case to redress and correct the aggregate problems and failures at DHS that, inter alia, have resulted in such victimization.
5. This civil rights class action is brought pursuant to 42 U.S.C. § 1983 on behalf of all foster children who are or will be in the legal custody of DHS. The foster children name as Defendants the Governor ofthe State of Oklahoma, the nine members ofthe Oklahoma Commission for Human Services, and the Director ofDHS (collectively, "Defendants"). All Defendants are sued in their official capacities. Defendants directly and indirectly control and are responsible for the policies and practices of DHS, including those set forth herein.
6. Oklahoma owes no higher duty than to stop victimizing her foster children. DHS's failure to provide for the basic safety and care of foster children in DHS custody subjects the children to significant, ongoing harm and imminent risk of harm, deprives them of chances for safe and stable childhoods, and violates their rights under the United States Constitution and specific federal statutes. This action seeks solely declaratory and injunctive relief in order to stop continuing violations of the legal rights of Oklahoma's foster children and to prevent DHS, by it policies and practices, from continuing to harm the very children who rely on the State for their care and protection.
7. The sole purpose of this case is to redress the ongoing aggregate problems and failures at DHS, an executive agency of the State of Oklahoma, including: (1) its failure to provide safe and adequate living situations for foster children and to meet their service needs; and (2) its failure to adequately monitor the safety of foster children due to an overburdened and mismanaged workforce and dangerously inadequate oversight practices.
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8. DHS bears the responsibility for having operated - and continuing to
operate - a foster care system in which children routinely become victims ofDHS's failures.
These failures include. inter alia:
• A drastic shortage of foster homes. DHS fails to develop and maintain an adequate number and array of foster homes and other appropriate placements for foster children. As a result, foster children are placed wherever a bed is available and without regard to their individual needs.
• Overcrowded and dangerous emergency shelters. DHS routinely houses foster children, including infants and toddlers, in overcrowded and unsafe emergency shelters for extended periods of time, sometimes in excess of six months, because DHS has nowhere else to house them.
• Unsafe and inappropriate foster homes and facilities. DHS utilizes foster homes that jeopardize the safety ofchildren, including homes with adults who have criminal convictions, homes that are dirty, overcrowded or lack adequate food, and homes in which supervision is dangerously lacking. DHS also utilizes facilities to house foster children that are often unsanitary, lack adequate supervision and employ staff who have not been properly trained and who have not even gone through background checks to identify criminal records or histories of abusive behavior.
• Excessive caseworker caseloads and an inexperienced and unstable workforce. For each of the past six years, the Oklahoma Child Death Review Board has recommended the hiring ofmore caseworkers to meet reasonable professional standards in order to reduce the number of deaths due to child abuse or neglect. While those standards limit caseloads to twelve to fifteen children per caseworker, DHS caseworkers are regularly assigned more than fifty children each, with some caseworkers responsible for more than one hundred children. As a result, caseworkers cannot make required visits with foster children and caregivers, and cannot adequately monitor child safety. The high caseloads also contribute to high turnover and an inexperienced workforce.
• Grossly inadequate payment for the care of foster children. Oklahoma fails to provide payments to those caring for foster children that even approach the actual cost of those children's care. The "foster care maintenance payments" set by DHS are grossly insufficient to provide basic support for foster children, and contribute to the shortage of foster homes.
9. As a result of these failures, DHS harms foster children and exposes them
to imminent risks of harm, including the following:
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• Abuse or neglect of foster children by foster parents or facility staff. For the past five years, Oklahoma has been among the worst three states in the nation, and for two years the very worst in the nation, in its rate of "abuse in care" of foster children. This includes physical abuse, sexual abuse or extreme neglect inflicted on foster children by foster parents or staff at shelters or other facilities. Abuse of children in state foster care custody takes place at a higher rate than for children in the general population: in two of the past five years, the "abuse in care" rate of children in DHS custody exceeded the rate ofchild abuse or neglect in the general population in Oklahoma. And these statistics actually minimize the reality of in-care abuse; the rates reported by DHS significantly undercount the actual frequency of such abuse.
• Abuse or neglect of foster children by their biological parents while in DDS custody. While still in DHS custody, foster children in Oklahoma are victims of abuse or neglect by their biological parents when sent by DHS on overnight unsupervised visits or ''trial home reunifications." The rate of this harm to foster children is more than double the rate at which children are abused or neglected by foster parents or facility staff.
• Denial of opportunities to maintain critical family relationships. Oklahoma foster children are routinely separated from their siblings who are also in DHS custody and DHS fails to arrange visits or other contact with siblings when these separations occur. DHS also fails to provide to foster children visits and other contact with biological parents, even when reunification is the goal set by DHS.
• Frequent moves among multiple inappropriate homes and facilities. Recent state data shows that 34% of foster children in Oklahoma had experienced four or more placements and 17% - approximately 1,700 children - had experienced six or more placements while in DHS custody. Such routine moves from one inappropriate placement to another inflict psychological harm and destroy these children's trust in adults, preventing them from developing an attachment to any family.
10. These failures and harms have been well documented and known to DHS
for many years. In the face of that knowledge, DHS has consistently failed to address, let alone
ameliorate, these failures. The harms - the physical, emotional and psychological injury and
deterioration of foster children while in DHS custody - inflicted daily on foster children in
Oklahoma, and the imminent risks of such harms to which they are repeatedly exposed, are the
direct result of the failures by DHS alleged in this Complaint.
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H. Jurisdiction and Venue 11. This action is brought pursuant to 42 U.S.C. § 1983, alleging violations of
the United States Constitution and federal statutes. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
12. Venue in this district is proper, pursuant to 28 U.S.C. § 1391 (b), because the claims arise in this district. HI. The Parties
A. The Named Plaintiffs1
13. D.G. is a five-month-old boy in foster care in DRS custody who has been adjudicated deprived. Re has been in DRS custody since shortly after his birth and, over the past five months, DRS has already moved him through at least four placements. DRS's placements for him have included one twenty-two-day stay at a grossly inappropriate and overcrowded emergency shelter that fails to provide adequate care and supervision for infants, where D.G. was inadequately supervised and suffered a fractured skull when he was dropped by a DRS worker who was carrying two babies at once. DRS is likely to move D.G. yet again from his current, temporary foster home.
14. Named PlaintiffD.G. appears through his Next Friend G. Gail Stricklin. Ms. Stricklin is the Guardian Ad Litem for D.G. in the Oklahoma County Juvenile Court. Ms. Stricklin maintains her principal office at 2932 N.W. 122nd Street, Suite 4, Oklahoma City, Oklahoma 73120.
1 Pursuant to Rule LCvRS.3 of the Local Civil Rules of the United States District Court for the Northern District of Oklahoma, the minor Named Plaintiffs are identified only by their initials.
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15. C.S. is an eleven-month-old girl in foster care in DRS custody who has been adjudicated deprived. She has been in DRS custody since shortly after her birth and, over the past eleven months, DRS has already moved her through seventeen placements. DRS's placements for her have included two stays at a grossly inappropriate and overcrowded emergency shelter, a hospital stay after extreme physical abuse in an unsafe foster home that caused C.S. to suffer a fractured skull, a second hospital stay after severe neglect in an unsafe group facility that caused C.S. to suffer life-threatening dehydration and seizures, and an unsafe and poorly monitored foster home in which C.S. suffered for months with a severe, untreated respiratory tract infection. DRS is likely to move C.S. yet again from her current, temporary foster home.
16. Named PlaintiffC.s. appears through her Next Friend Barbara Sears. Ms. Sears resides at 1532 Fir Drive, Sand Springs, OK 74063. J.B.
17. J.B. is a sixteen-month-old boy in foster care in DRS custody who has been adjudicated deprived. Re has been in DRS custody since he was two days old and, over the past sixteen months, DRS has already moved him through four placements. DRS's placements for him have included an unsafe and poorly monitored trial home reunification with his biological mother, where he was neglected, and a month-long stay in a grossly inappropriate and overcrowded emergency shelter, where he was inadequately monitored and supervised and suffered frrst- and second-degree burns. DRS has placed J.B. in a temporary foster home while his burns heal, after which DRS is likely to move him yet again.
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18. Named Plaintiff J.B. appears through his Next Friend Buddy Faye Foster. Ms. Foster is the Court Appointed Special Advocate ("CASA") for 1.B. in the Oklahoma County Juvenile Court. Ms. Foster resides at 600 N.W. 4th Street, #120, Oklahoma City, OK 73102. A.P.
19. AP. is a four-year-old girl in foster care in DRS custody who has been adjudicated deprived. In the eighteen months that A.P. has been in DRS custody, DRS has already moved her through six placements. DRS's placements for her have included the home of a relative who had a prior history of child abuse, where AP. was sexually abused, and an unsafe and inadequately supervised trial home reunification with her biological father. DRS is likely to move AP. yet again from her current, temporary foster home.
20. Named Plaintiff AP. appears through her Next Friend Leslie A Ellis Kissinger. Ms. Kissinger is the court-appointed attorney for AP. in the Rogers County Juvenile Court. Ms. Kissinger maintains her principal office at P.O. Box 1530, Claremore, OK 74018. J.A.
21. lA is a five-year-old boy in foster care in DRS custody who has been adjudicated deprived. In the twelve months that J.A has been in DRS custody, DRS has already moved him through nine placements. DRS's placements for him have included four separate stays in grossly inappropriate and overcrowded emergency shelters in four different counties. DRS is likely to move J.A yet again from his current, temporary foster home.
22. Named Plaintiff J.A appears through his Next Friend Buddy Faye Foster. Ms. Foster is the CASA for lA. in the Oklahoma County Juvenile Court. Ms. Foster resides at 600 N.W. 4th Street, #120, Oklahoma City, OK 73102.
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23. J.P. is a seven-year-old boy in foster care in DHS custody who has been adjudicated deprived. In the eighteen months that J.P. has been in DHS custody, DHS has already moved him through eight placements. DHS's placements for him have included an unsafe and poorly monitored foster home where he was physically abused repeatedly for almost a year. DHS is likely to move J.P. yet again from his current, temporary foster home.
24. Named Plaintiff J.P. appears through his Next Friend G. Gail Stricklin. Ms. Stricklin is an attorney of record for J.P. in the Oklahoma County Juvenile Court. Ms. Stricklin maintains her principal office at 2932 N.W. 122nd Street, Suite 4, Oklahoma City, Oklahoma 73120. R.J.
25. R.J. is a twelve-year-old boy in foster care in DHS custody who has been adjudicated deprived. He has been in and out ofDHS custody for the past eight years and, during that time, DHS has moved him through more than twenty facilities and homes. DHS's placements for him have included an unsafe and inadequately supervised trial home reunification with his biological mother where he was neglected, six stays at grossly inappropriate and overcrowded emergency shelters, and an eighteen-month stay in an unsafe and poorly monitored foster home where he was regularly beaten with switches. R.l currently languishes in an unsafe and poorly supervised group home, and continues to deteriorate in DHS custody as he waits indefinitely for a stable and pennanent placement.
26. Named PlaintiiIR.J. appears through his Next Friend Paul Naylor. Mr. Naylor is the counsel of record for R.J. in the Tulsa County Juvenile Court. Mr. Naylor maintains his principal office at 1701 S. Boston Avenue, Tulsa, OK 74119.
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27. O.C. is a thirteen-year-old girl in foster care in DHS custody who has been adjudicated deprived. She has been in DHS custody for the past four years and, during that time, DHS has moved her through at least fifteen placements all over the state. DHS's placements for her have included an unsafe and inadequately supervised foster home where she was physically beaten, an overly restrictive and poorly monitored institutional facility where she was sexually assaulted, an extended stay at a grossly inappropriate and overcrowded emergency shelter, and an unsafe and poorly monitored trial home reunification with her biological mother. O.C. currently lives in a poorly monitored and overly restrictive institutional facility, and continues to deteriorate while in DHS custody as she waits indefmitely for a stable and permanent placement.
28. Named Plaintiff O.C. appears through her Next Friend Anne Sublett. Ms. Sublett is the counsel of record for O.C. in the Tulsa County Juvenile Court. Ms. Sublett maintains her principal office at 4000 One Williams Center, Tulsa, OK 74172-0148. K.T.
29. K.T. is a sixteen-year-old girl in foster care in DHS custody who has been adjudicated deprived. She has been in DHS custody for the past ten years and, during that time, DHS has moved her through more than twenty placements. DHS's placements for her have included several stays in grossly inappropriate and overcrowded emergency shelters and several unsafe and poorly monitored group homes that failed to provide services, programs or treatment for her developmental delays. K.T. currently lives in an inappropriate, unsafe and poorly monitored group home in Tulsa, which houses foster children of all ages and lacks any
9

specialized programs or treatment for her developmental delays, and she continues to deteriorate while in DHS custody as she waits indeftnitely for a stable and penuanent placement.
30. Named PlaintiffK.T. appears through her Next Friend Barbara Sears. Ms. Sears is an attorney of record for K.T. in the Oklahoma County Juvenile Court. Ms. Sears resides at 1532 Fir Drive, Sand Springs, OK 74063.
B. The Defendants 31. Defendant C. Brad Henry is the Governor of Oklahoma and is sued in his
official capacity. Pursuant to Article VI, Section 8 of the Constitution of Oklahoma, the executive power of the State is vested in the Governor. Pursuant to that Section, the Governor is responsible for ensuring that all executive departments and agencies within the state, including DHS, faithfully execute and comply with applicable federal and state law. Pursuant to Article XXV, Section 3 of the Constitution of Oklahoma, the Governor has the power to appoint all nine members of the Oklahoma Commission for Human Services. Governor Henry maintains his principal place of business at the Governor's Office, State Capitol Building, 2300 N. Lincoln Boulevard., Room 212, Oklahoma City, OK 73105.
32. Defendant Richard L. DeVaughn is Chainuan of the Oklahoma Commission for Human Services and is sued in his official capacity. Pursuant to Article XXV, Sections 3 and 4 ofthe Constitution ofOklahoma, the Commission for Human Services is responsible for fonuulating the policies and adopting the rules and regulations for the administration ofDHS, and for appointing the Director ofDHS. The Oklahoma Commission for Human Services is a nine-member governing board for DHS whose members serve by appointment of the Governor in staggered nine-year tenus. The Oklahoma Commission for
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Human Services maintains its principal office at Oklahoma Department of Human Services, Sequoyah Memorial Office Building, 2400 N. Lincoln Boulevard, Oklahoma City, OK 73105.
33. Defendant Ronald C. Mercer is Vice-Chairman of the Oklahoma Commission for Human Services and is sued in his official capacity.
34. Defendant Wayne Cunningham is a member of the Oklahoma Commission for Human Services and is sued in his official capacity.
35. Defendant Jay Dee Chase is a member of the Oklahoma Commission for Human Services and is sued in his official capacity.
36. Defendant Patrice Dills Douglas is a member of the Oklahoma Commission for Human Services and is sued in her official capacity.
37. Defendant Michael L. Peck is a member of the Oklahoma Commission for Human Services and is sued in his official capacity.
38. Defendant Garoldine Webb is a member of the Oklahoma Commission for Human Services and is sued in her official capacity.
39. Defendant Aneta R. Wilkinson is a member of the Oklahoma Commission for Human Services and is sued in her official capacity.
40. Defendant Rev. George E. Young is a member of the Oklahoma Commission for Human Services and is sued in his official capacity.
41. Defendant Howard H. Hendrick is the Director of DHS and is sued in his official capacity. Pursuant to Article XXV, Section 4 of the Constitution of Oklahoma, the Director ofDHS serves as the chief executive and administrative officer of the Department. The Director of DHS is responsible for administering all DHS child welfare services and programs and assuring that all such services and programs operate in conformity with constitutional,
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statutory and regulatory requirements. Pursuant to Oklahoma Administrative Code § 340: 1-1-4, the Director ofDHS is charged with the responsibility for day-to-day direction of the activities necessary for DHS to accomplish its mission, and the Director's duties include serving as chief spokesperson for DHS and ensuring that actions approved by the Commission for Human Services are carried out. Director Hendrick serves by appointment of the Oklahoma Commission for Human Services. Director Hendrick maintains his principal office at Oklahoma Department of Human Services, Sequoyah Memorial Office Building, 2400 N. Lincoln Boulevard, Oklahoma City, OK 73105. IV. Class Action Allegations
42. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
43. The class is defined as "all children who are or will be in the legal custody of the Oklahoma Department of Human Services (1) due to a report or suspicion of abuse or neglect, or (2) who are or will be adjudicated deprived due to abuse or neglect." As used in this Complaint, the members of the class are referred to as the "Class" or the "Plaintiff Children" or "foster children."
44. According to state data from 2006, approximately 10,000 foster children were in the legal custody ofDHS. The Class is sufficiently numerous to make individual joinder impracticable.
45. The questions oflaw and fact raised by the Named Plaintiffs are common to and typical of those raised by the putative class members. Named Plaintiffs, like the other Plaintiff Children, are children in DHS's legal custody who rely on DHS for their safety and
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well-being, and have been harmed or are at imminent risk ofharm by the common legal
deficiencies of Oklahoma's foster care system alleged in this Complaint.
46. Questions of fact common to the Class include:
a. Whether DRS has a policy or practice of failing to develop and maintain a sufficient number and array of safe and appropriate placements for Plaintiff Children, causing significant harm and risk of harm to Plaintiff Children's safety, health and well-being;
b. Whether DRS has a policy or practice of failing to adequately monitor the safety of PlaintiffChildren, causing significant harm and risk of harm to Plaintiff Children's safety, health and wellbeing;
c. Whether DRS has a policy or practice of placing Plaintiff Children in unsafe and inappropriate homes and facilities, causing significant harm and risk of harm to Plaintiff Children's safety, health and well-being;
d. Whether DRS has a policy or practice that has the effect of subjecting Plaintiff Children to abuse, neglect and other maltreatment while in DRS custody, causing significant harm and risk of harm to Plaintiff Children's safety, health and well-being;
e. Whether DRS has a policy or practice of subjecting Plaintiff Children to unreasonably frequent moves from placement to placement, causing significant harm and risk of harm to Plaintiff Children's health and well-being;
f. Whether DRS has a policy or practice of failing to arrange for and facilitate Plaintiff Children's family relationships, causing significant harm and risk ofharm to Plaintiff Children's health and well-being;
g. Whether DRS has a policy or practice of failing to place Plaintiff Children in the least restrictive and most family-like settings appropriate to their needs, causing significant harm and risk of harm to Plaintiff Children's health and well-being;
h. Whether DRS has a policy or practice of failing to provide adequate foster care maintenance payments and an adequate methodology for calculating those payments for the care of Plaintiff Children; and
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1. Whether the conduct described in sub-paragraphs a through h, above, is contrary to law, reasonable professional standards and outside the exercise of any professional judgment.
47. Questions of law common to the Class include:
a. Whether DHS's policies and practices violate Plaintiff Children's substantive due process rights to be reasonably free from harm and imminent risk of harm while in state custody, guaranteed by the Fourteenth Amendment to the United States Constitution;
b. Whether DHS's policies and practices violate PlaintiffChildren's rights to family association and integrity, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution;
c. Whether DHS's policies and practices violate Plaintiff Children's rights established by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations;
d. Whether DHS's policies and practices violate Plaintiff Children's rights to procedural due process, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution; and
e. Whether DHS's policies and practices violate Plaintiff Children's rights as direct and intended third-party beneficiaries under the Title IV-E State Plan contract executed between Oklahoma and the federal government.
48. The legal violations alleged by the Named Plaintiffs and the resultant harms
are typical of those raised by each member ofthe putative class.
49. Named Plaintiffs will fairly and adequately protect the interests of the
members of the putative class.
50. Each Named Plaintiff appears by a Next Friend pursuant to Federal Rule of
Civil Procedure 17(c), and each Next Friend is sufficiently familiar with the facts ofthe child's
situation to fairly and adequately represent the child's interests in this litigation, and is dedicated
to the child's best interests in this litigation.
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51. The Narned Plaintiffs and the putative class are represented by:
a. R. Thomas Seymour, a licensed Oklahoma attorney with extensive experience in complex civil litigation, civil rights matters and class actions in the federal courts, and the law firm of Seymour & Graham, LLP;
b. Frederic Dorwart, a licensed Oklahoma attorney with extensive experience in complex civil litigation and class actions in the federal courts, and the law firm ofFrederic Dorwart, Lawyers;
c. Doerner, Saunders, Daniel & Anderson, LLP, an Oklahoma law firm with extensive experience in complex civil litigation and class actions in the federal courts;
d. Day Edwards, Propester & Christensen, PC, an Oklahoma law frrm with extensive experience in complex civil litigation and class actions in the federal courts;
e. Attorneys employed by Children's Rights, a national nonprofit legal organization whose attorneys have extensive experience and expertise in child welfare class actions nationally; and
f. Kaye Scholer LLP, an international private law firm with extensive experience in complex civil litigation and class actions in the federal courts.
52. Counsel retained by the Named Plaintiffs are competent and experienced in
class action litigation, child welfare litigation and complex civil litigation.
53. The attorneys and entities listed above have investigated all claims in this
action and have committed sufficient resources to represent the Class through trial and any
appeals.
54. The attorneys and entities listed above know of no conflicts between or
among members of the putative class.
55. Defendants, who directly and indirectly control or are responsible for the
polices and practices ofDHS, have acted or failed to act in a manner generally applicable to the
putative class, making class-wide declaratory and injunctive relief appropriate and necessary.
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V. Dangerous Failures in Oklahoma's Foster Care System Have Been Documented for Over Ten Years, Yet DHS Has Failed to Ameliorate Them or Implement Necessary Reform 56. Oklahoma's child welfare system has steadily deteriorated since 1997 and
is and has been incapable of fulfilling its duties to Plaintiff Children. DHS has been aware of, yet has failed to address, these well-known problems.
57. In 1997, because of "[h]igh levels of dissatisfaction with, and lack of confidence in, Oklahoma's fragmented and complex foster care system," the Oklahoma House of Representatives Human Services Committee issued a report entitled "Interim Study of the Foster Care System Throughout Oklahoma." This report was based on "an in-depth study of the foster care system in which every foster care home in the state was visited." The 1997 report described several emerging problems with DHS that were causing harm to children. It identified a shortage of foster homes and a lack of support for foster parents, stating "[w]e recruit foster parents and we don't support them afterwards, and then we lose them."
58. The 1997 report recommended that: DHS reorganize the agency structure to create direct linkage among DHS, policy makers and field personnel; DHS "[r]eview number of staff, level and cases per staff to determine ifmore staffmg or realignment of staff is required to adequately service the foster care program;" and DHS hire "[m]ore caseworkers/staffing." As alleged below, in the ten years since that report, DHS has failed to correct any of the deficiencies identified in the report.
59. In 1999, the Oklahoma legislature appointed a Child Welfare System Reform Review Committee to study "the policies, procedures, and statutes governing Oklahoma's child abuse and child welfare system and to make recommended revisions to this system." This Committee issued a public report on January 24,2000, which stated that "[t]he
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caseloads for child protective services workers need to be within the bounds recommended by the national standard. The subcommittee believes [there is a] need for additional child welfare workers."
60. In June of2001, the Governor's Task Force on Children in Custody presented its Annual Report to the Governor and the Director ofDHS, which focused on the lack of support given by DHS to foster parents throughout the state. The report stated that there were "foster parents with many years of experience who felt that the hassles and the lack of support from the Department made it next to impossible to continue to care for the children." The report criticized DHS for retaliating against foster parents who raised issues with DHS: "any foster parent who 'makes waves' is at risk of losing the children in their home and having their home closed by the Department. Some foster parents even expressed fear of their own children and grandchildren being removed by the Department." The report also highlighted that children in DHS custody were frequently placed in homes without foster parents receiving adequate information about the child's needs, medical history or family history, that DHS was performing only cursory face-to-face visits with children in custody, and that DHS caseworkers were not equipped to answer foster parents' most basic questions about the status of their child's case. In the years since that report was published, DHS has failed to correct any of the deficiencies identified in the report.
61. Because Oklahoma receives federal funding to operate its child welfare system, it is subject to periodic Child and Family Service Reviews ("CFSRs"), conducted by the Administration for Children and Families, a division of the United States Department of Health and Human Services ("HHS"). These reviews are designed to assess whether states are in
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substantial confonnity with federal child welfare benchmarks in the areas of child safety, permanency and well-being.
62. Oklahoma's initial CFSR was completed in 2002. In nearly every area reviewed, Oklahoma failed to meet federal standards, often by a wide margin. Oklahoma failed with respect to each ofthe seven "safety, permanency and well-being outcomes" tracked by the review, which included: protecting children from abuse and neglect; safely maintaining children at home when possible and appropriate; providing permanency and stability in children's living situations; preserving continuity of family relationships and connections; enhancing families' capacity to provide for children's needs; ensuring that children receive services to meet their educational needs; and ensuring that children receive services to meet their physical and mental health needs.
63. The 2002 CFSR found that DRS failed to meet the requirement that "[c]hildren are, first and foremost, protected from abuse and neglect," noting that the failure was due to a "high level of staffturnover among the child welfare agency's front-line workers, which results in both inexperienced staff and excessive staff case1oads." RRS found that Oklahoma was "{nJot making sufficient efforts to reduce the risk ofharm to children." (emphasis added).
64. Oklahoma's second CFSR took place in August of2007. Although the results of that CFSR are not yet public, DRS published its own CFSR "Statewide Assessment" in anticipation of the federal review. The CFSR Statewide Assessment documents DRS's continuing failure to protect children. For example, the reported frequency of foster children abused or neglected by foster parents or residential facility staffwhile in DRS custody was 1.2% for the twelve-month period ending March 31, 2006, which is nearlyfour times the maximum allowed federal benchmark of 0.32%.
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65. The 2007 CFSR Statewide Assessment also documented the lack of foster homes. Over 95% ofDHS's Child Welfare staffwho were interviewed as part ofthe CFSR Statewide Assessment reported there were not enough foster homes for children in DHS custody. As a result, DHS often put foster children in placements that were likely to fail, resulting in children frequently being forced to move from one placement to another.
66. Echoing the 2002 CFSR, the 2007 CFSR Statewide Assessment repeatedly tied DHS's failures to worker turnover, inexperienced staff, excessive caseloads and an insufficient number of foster homes.
67. The Oklahoma Child Death Review Board annually publishes the results of investigations conducted upon the death of a child. In every year from 2001-2006, the Oklahoma Child Death Review Board documented that DHS workers have caseloads two to three times higher than national standards.
68. Every year, the Oklahoma Child Death Review Board has recommended that DHS bring worker caseloads into compliance with nationally recognized standards in order to reduce child deaths and, in 2004, the Board explicitly recommended that DHS "hire additional child welfare staff in order to be in compliance with accepted national standards ... in order to reduce the number of deaths due to child abuse/neglect."
69. The dangerous failures at DHS have been repeatedly documented in the Oklahoma media over the past three years. For example, on December 18, 2005, the Tulsa World reported on the death of Felipe Gonzalez, a three-year-old foster child in Oklahoma City who was killed while living in a foster home. The article, entitled "Who Dropped the Ball?" stated that while "Oklahoma DHS officials approved the placement of Felipe and his sister in the
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[foster] home, state officials never conducted the required in-home visits during the six months the siblings [lived in that home]."
70. On February 19,2006, the Tulsa World published an editorial entitled "Oklahoma's Child Welfare System Needs Restructuring." This editorial stated that DRS "is the system that is supposed to protect children, but many times it is the system that re-victimizes a child. For the most part, this isn't the fault of the many caring professionals that work in the child welfare system. It is the system that needs to be turned upside down, inside out, and changed."
71. On September 24, 2006, the Daily Oklahoman published an editorial entitled "Foster Care System Needs Reform." This editorial chronicled DRS's "glaring problems," including "inadequate numbers of foster homes across the state, insufficient reimbursement to foster parents for children's basic needs [and] burdensome case loads for DRS case workers who monitor these Children[.]"
72. On December 7, 2006, an article in the Daily Oklahoman entitled "Welfare Workers Knew of Problems Before Child's Death, Records Show" reported on the death of Samuel Barber, a three-month-old baby who died in Oklahoma City's Pauline Mayer Emergency Shelter. The Daily Oklahoman reported that "state child welfare workers were aware of problems with [the] family before Oklahoma County sheriffs deputies found four children living in dog feces and garbage at a home." The article stated that the infant was kept in the Mayer Emergency Shelter for several days - in violation of DRS policy before he died. The official DRS spokesman stated: "If there are no foster homes and no kinship, yet the court won't let them return home, there are no other options. We have to keep them in the shelter.... The state of Oklahoma is the worst parent a child could have."
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VI. Failures in the Operation of the Oklahoma Foster Care System 73. DHS operates a system in which the long-known, pervasive failure to
provide for the basic safety and well-being of children continues to directly harm foster children in DHS custody and places them at imminent risk of harm. As alleged herein, this failure includes, and is a direct result of: (1) DHS's failure to provide safe and adequate living situations for Plaintiff Children and to meet their service needs, including grossly inadequate foster care maintenance payments to foster parents and the failure to plan for and take mandated steps to fmd permanent and safe homes for Plaintiff Children outside of state custody; and (2) DHS's failure to adequately monitor the safety of Plaintiff Children due to an overburdened and mismanaged workforce and dangerously inadequate oversight practices. These failures are obvious, and the harm and imminent risk of harm they cause have been well documented and known to DHS, yet DHS has failed to take appropriate steps to address and ameliorate them.
74. As a result, Defendants, who directly and indirectly control and are responsible for the policies and practices ofDHS, have failed to exercise any professional judgment and have acted with deliberate indifference to the safety, well-being and legal rights of Plaintiff Children.
A. Plaintiff Children Are Victimized While in DHS Custody 75. DHS's failure to provide Plaintiff Children with safe and adequate living
situations and services and its failure to adequately monitor Plaintiff Children's safety directly cause Plaintiff Children to suffer from abuse or neglect while in DHS custody at an alarming rate. This "abuse in care" rate includes reports ofphysical abuse, sexual abuse or extreme neglect at the hands of foster parents or facility staff who are providing direct care for Plaintiff
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Children under the ostensible supervision ofDHS. Such reports are investigated and ultimately "confrrmed" by DHS.
76. According to state data, in each of the past five years, from Federal Fiscal Year ("FFY") 2001 through FFY 2005, Oklahoma has been among the worst three states in the country for confrrmed abuse or neglect of foster children in state custody. In four ofthose five years, Oklahoma ranked worst or second worst in the nation and, in two of those years, Oklahoma had the single highest rate ofconfrrmed abuse of foster children in state custody in the nation.
77. Oklahoma's rate of abuse or neglect of children in foster care has invariably far exceeded the benchmarks set by the federal government. In 2002, 1.62% of Oklahoma foster children were abused or neglected, almost three times greater than the federal benchmark of 0.57% for children in foster care; in 2003, the Oklahoma rate rose to 1.88%, or 3.3 times the federal benchmark. In fact, in 2002 and 2003, the rates of abuse and neglect of children in foster care in Oklahoma were so high that PlaintiffChildren suffered abuse or neglect at a higher rate than children in the general popUlation (as recorded in 2002 and 2003 at 1.57% and 1.43%, respectively).
78. In FFY 2004, 1.23% of Oklahoma foster care children were the victims of confirmed abuse or neglect while in state custody, more than twice the federal benchmark. The following year, FFY 2005, the rate was 1.17%, again more than twice the federal benchmark.
79. Most recently, Oklahoma's performance in subjecting Plaintiff Children to abuse or neglect has only worsened on a national scale. Last year, the federal government published a new benchmark of a maximum rate of abuse or neglect of 0.32%, reflecting a lower abuse in care standard nationwide. According to state data, for the twelve-month period ending
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March 31, 2006, 1.2% of children in foster care in Oklahoma were abused or neglected while in state custody, almost four times the current national standard.
80. The federal abuse in care measure discussed above includes only foster children abused or neglected by foster parents or residential facility staff, and excludes foster children who are the victims ofconfirmed abuse or neglect by their biological parents while still in the state's custody (i.e., while on a visit or on trial home reunification).
81. In Oklahoma, the number of foster children abused or neglected by their biological parents while still in DHS custody is dangerously high and increasing. According to state data, another 2.04% of Oklahoma foster care children were the victims of confirmed abuse or neglect by their biological parents while in DHS custody. In FFY 2005, this rate rose to 2.2%, and by the twelve-month period ending March 31,2006, rose again, to 2.3%.
82. From July 1, 2004 to March 31, 2006, over 1,700 foster children in Oklahoma were victims of confirmed abuse or neglect by foster parents, facility staff or their biological parents while in DHS custody.
83. The official rate of abuse and neglect of foster children in DHS custody outlined above consistently underreports the occurrence of abuse in care, since those rates only include incidents of abuse or neglect which have been investigated and confirmed by DHS. Incidents of abuse or neglect, and other serious maltreatment of foster children such as the use of corporal punishment and other prohibited forms of discipline, occur regularly and are never identified or reported, let alone investigated, due to DHS's failure to adequately monitor the safety and well-being of children in its care.
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B. DHS Houses Plaintiff Children in Dangerous and Inappropriate Placements That Fail to Provide Adequate Protection or Meet Their Needs 84. DRS has engaged in a policy, pattern, custom and/or practice of placing
children in dangerous and inappropriate placements that fail to provide adequate protection and care. DRS has been and is fully aware of the dangers of this policy, pattern, custom and/or practice, but has failed to act to prevent it or correct it. By subjecting Plaintiff Children to placement practices that are emotionally, psychologically and physically injurious to them, DRS has acted and continues to act with deliberate indifference to the welfare of Plaintiff Children and to Plaintiff Children's legal rights, and outside any reasonable exercise of professional judgment. This policy, pattern, custom and/or practice has caused, and is causing, direct and severe harm or imminent risk of harm to Plaintiff Children.
1. DHS's Failure to Develop and Maintain a Sufficient Number and Array of Foster Care Placements
85. DRS has failed to develop and maintain a sufficient number and array of foster care placements necessary to allow DRS to place Plaintiff Children in safe environments where their basic needs can be met. Despite being on notice for years of a growing and drastic shortage of foster homes and other appropriate foster care placements, DRS has failed to take even the most basic steps to address the problem.
86. The severe shortage of foster care placements strains the DRS placement system, leading to placement matches driven solely by the immediate availability of a bed rather than a child's individual needs, and resulting in the frequent "disruption" of foster homes and the movement of foster children from one placement to another.
87. The placement shortage also causes DRS to keep open dangerous homes and facilities, without addressing known safety problems. DRS places Plaintiff Children in
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unsafe, unsupported or unsuitable foster homes and facilities, and leaves foster children, even infants and toddlers, languishing in emergency shelters. The shortage is particularly severe for adolescents, and for children who require homes with foster parents who have specialized training and supports to address behavioral problems (also called "therapeutic foster care" homes), or who otherwise have significant mental health or behavioral needs. At the same time, DHS frequently places older foster children in institutional facilities for long periods of time when they should be in less restrictive placements.
2. DBS Unnecessarily Institutionalizes Plaintiff Children in Dangerous and Inappropriate Emergency Shelters for Extended Periods of Time
88. Under federal law, DHS policy and reasonable professional standards, children taken into foster care custody must be placed in the least restrictive and most family-like environment possible, taking into account the child's needs. DHS routinely places children of all ages even infants and toddlers - for extended periods of time in dangerous, overcrowded and inappropriate emergency shelters without adequate staffmg and services, resulting in harm or imminent risk of harm to Plaintiff Children.
89. Because of the grave shortage of foster homes, foster children who are removed from their homes and placed in DHS custody are routinely placed in an emergency shelter - often far from their home community as their fITst placement. In fact, all children removed from their homes in Oklahoma and Tulsa Counties, the largest counties in the state, are fITst placed in an emergency shelter. The 2002 CFSR confrrmed that DHS "was placing children in emergency shelters without attempting to find more appropriate alternative placements, such as relatives or a foster home." This practice continues today. Hundreds of children in DHS custody are placed in over thirty emergency shelters throughout the state at any given time.
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90. Although the emergency shelters used to house foster children in DRS custody are intended to be very short-term placements until appropriate placements are found, children in DRS custody frequently languish in emergency shelters for many months at a time, sometimes for more than six months, because DRS has nowhere else to place them. Plaintiff Children with special mental health or behavioral needs remain in emergency shelters for especially long periods oftime. This harmful practice violates DRS's own policy mandating that children younger than five years old remain in shelters for no more than twenty-four hours.
91. Not only do children in DRS custody who are initially brought into shelters remain there for long periods oftime, but these same children frequently return to shelters for long periods of time when other placements are disrupted, which occurs frequently due to DRS's failure to adequately match placements with Plaintiff Children's needs and its failure to provide services and supports to these placements. The 2002 CFSR reported that this results "in a pattern of children moving in and out of shelter care." This practice continues today.
92. The serious shortage of appropriate out-of-home placements for children in DRS custody results in chronic and dangerous overcrowding at the two largest emergency shelters in Oklahoma.
93. DRS operates the Pauline Mayer Emergency Shelter in Oklahoma City, which is licensed to house forty-two children, but routinely houses more than sixty children due to the lack of any alternative placements. In order to avoid violations from the Fire Marshal for overcrowding, DRS routinely shuffles children out of this shelter and temporarily places them in day care facilities, group homes or other placements which have "shelter overflow" arrangements with DRS.
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94. DHS operates the Laura Dester Emergency Shelter in Tulsa, which is currently approved to house fifty children, but routinely houses more than sixty children. In 2005, shelter capacity reached a record high of eighty-five children in one day. The Dester Shelter was over capacity on 325 days in fiscal year 2006.
95. Infants and toddlers are especially vulnerable and subject to harm as a result of the persistent overcrowding at DHS-operated emergency shelters. In Tulsa, most children entering the Dester Emergency Shelter are five years old or younger. The "Little House" of the Dester Emergency Shelter has twenty-five beds for newborns; at times, however, it holds over thirty babies. In Oklahoma City, the Annex building to the Pauline Mayer Emergency Shelter is used as additional shelter space to house babies, infants and toddlers who are removed from their homes and placed in DHS custody. It is licensed for sixteen children, but routinely exceeds this limit. Contrary to reasonable professional standards, DHS policy, and outside the exercise of any professional judgment, DHS routinely places infants and toddlers in shelters for extended periods of time, without appropriate staffmg and services.
96. As a result of the severe overcrowding at the Tulsa and Oklahoma City emergency shelters, Plaintiff Children are often forced to live in dangerous and grossly inappropriate conditions. Children who have just been through the trauma of being removed from their homes due to abuse or neglect are routinely forced to sleep on cots or in cribs in hallways, recreation rooms and play areas of the emergency shelters and, at times when overcrowding is too extreme, in DHS offices.
97. Emergency shelter placements in Oklahoma City, Tulsa and elsewhere in the state also house children with aggressive physical or sexual behaviors together with
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vulnerable children, including those who have been sexually abused or have significant developmental disabilities. This unsafe practice puts Plaintiff Children at extreme risk of harm.
98. Additionally, when DRS places Plaintiff Children in emergency shelters, their education is often disrupted, sometimes for many weeks, impeding their educational development and access to basic and adequate education while in state custody.
3. DBS Places Plaintiff Children in Dangerous and Inappropriate Bomes and Facilities While in DBS Custody
99. As a direct result of the drastic shortage of foster care homes, DRS routinely places Plaintiff Children in dangerous and inappropriate homes and facilities, including foster homes, group or institutional placements, day care facilities and the homes ofbiological parents or relatives, where Plaintiff Children are harmed or subjected to imminent risk of harm.
100. Overcrowding in foster homes is common in Oklahoma. For example, foster homes licensed for four foster children often have seven or more foster children placed in them, in addition to any biological children of the foster parents in the home. This overcrowding frequently prevents adequate parental supervision and places Plaintiff Children at serious risk of harm.
101. DRS also routinely sends Plaintiff Children to stay with their biological families or relatives for unsupervised visits or for unsupervised and unmonitored trial home reunification while still in DRS custody, in which the children's safety is at risk. Children often become victims of abuse or neglect during these unsupervised visits or unsupervised and unmonitored trial home reunifications.
102. For example, in March of 2007, three-year-old Blake Ragsdale died while in DRS custody after DRS had unlawfully placed Blake back with his biological mother without the required court order approving the trial home reunification. Blake was born addicted to
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methamphetamine and was diagnosed with cerebral palsy and a rare metabolic dysfunction that was fatal if not treated. He could not walk or talk and required a walker, several medications and constant supervision. However, DHS placed Blake back with his biological mother two and a half weeks prior to Blake's death without notifying the Juvenile Court or Blake's attorney, although Blake's mother had not completed her treatment plan, was unemployed, did not have a home phone or car, and was woefully unequipped to take care of Blake's special medical needs. DHS also failed to provide Blake's mother with services necessary to enable her to care for her son.
103. DHS had previously reunified Blake with his mother, but Blake had been brought back into DHS custody in 2006 because he was in critical condition and because his mother had failed to take him to his necessary physical therapy appointments. A doctor diagnosed him with "failure to thrive." Despite the obvious inability of Blake's mother to take care ofhis serious medical needs and her negligence in caring for Blake, DHS made the decision to place Blake back with his mother again in 2007. That poor decision resulted in Blake's death.
104. DHS further abrogated its duties by failing to report Blake's death to the Child Death Review Board or the Juvenile Judge in charge of Blake's case. Instead, the matter only came to light when Blake's case was randomly chosen for an audit by DHS at the end of 2007. DHS then tried to hide its mistakes by removing vital information from the final DHS report to the District Attorney on Blake's death. Although contained in a draft report, the final version ofthe report omitted all text stating that there had been no court-approved trial home reunification. In addition, no one at DHS has been held accountable for Blake's death. The DHS caseworker in charge of Blake's case now works for DHS in another county.
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105. DRS also frequently mixes aggressive, or even violent, foster children, including children with histories of sexual or assault offenses, in the same foster homes, group homes and facilities, in close proximity to non-violent children, including those who have been sexually abused or have developmental disabilities, placing Plaintiff Children at imminent risk of harm.
106. Despite the explicit prohibition in DRS policy against the use of any form of physical discipline or corporal punishment on children in DRS custody, PlaintiffChildren are routinely victims ofphysical discipline in foster homes and residential facilities. Even when DRS caseworkers are aware that physical discipline has been used on a foster child, corrective actions are often not taken or not monitored to ensure they are implemented.
107. DRS also routinely places children in custody in dangerous residential facilities and group homes, where safety hazards include unsanitary conditions, staff shortages and inadequate supervision, incomplete requisite staff training and licenses, and inappropriate grants by DRS of criminal background waivers for staff.
108. Foster children in DRS custody are also placed in DRS-licensed day care facilities, which are often inadequately monitored and supervised, and which subject Plaintiff Children to harm and imminent risk of harm.
4. DBS Frequently Moves Children From One Inappropriate Placement to Another, Causing Them Severe Emotional and Psychological Barm
109. Moving foster children among multiple homes and facilities causes them serious emotional and psychological harm, and damages their ability to trust and form relationships with adults.
110. Due to the drastic shortage of foster homes and the chronic overcrowding in emergency shelters, children in DRS custody are routinely placed without regard to their specific
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needs or the training and capacity of the foster parents or other caretakers with whom they are placed. As a result, children are placed wherever a bed or slot is available and placements are frequently disrupted, causing severe emotional and psychological harm to Plaintiff Children as they are shuffled from one inappropriate placement to another.
111. The 2002 CFSR found that "children in the system are moved too frequently from one placement to another" and "placement resources are insufficient with respect to both quality and quantity." It also found "that there is too much pressure on agency workers to move children out of shelter placement into a home. Because of this pressure, placements are often made without careful supervision, and when the homes do not meet the child's needs the placement disrupts." These problems continue today.
112. According to state data, as of March 31, 2006, more than 52% of children in DRS custody had experienced three or more placements. Almost 17% had six or more placements, which means that approximately 1,700 children in DRS custody had experienced the trauma of moving among at least six placements.
113. In reality, Plaintiff Children move even more frequently than is reflected in state data because DRS often fails to track Plaintiff Children's location and movement once they are placed with a private provider of homes under contract with DRS, which in turn may move Plaintiff Children among many placements.
114. DRS routinely fails to ensure that Plaintiff Children's personal belongings follow them when they move from one placement to another, adding to the trauma that children experience from frequent and abrupt moves while in DRS custody.
115. The multiple moves to which DRS subjects foster children forces them to frequently change schools, miss an unnecessary amount of school, and fall behind in school.
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DHS regularly fails to ensure that Plaintiff Children's educational records follow their numerous placement moves. In addition, for Plaintiff Children who require special education services, DHS routinely fails to ensure that their "'Individualized Education Plans" are prepared and updated.
5. DDS Prevents Plaintiff Chlldren From Maintaining Critical Family Ties While in State Custody
116. Placing children near their home minimizes the trauma they have already suffered from removal, helps children maintain ties with parents and siblings, and avoids unnecessary separation from school, other family members, friends and existing local supports. In contrast, due to the drastic shortage of foster homes, DHS sends most children in foster care to live in placements that are distant from their homes, schools and communities, often hundreds of miles away.
117. Due to the shortage of homes and facilities, DHS also routinely separates siblings in custody, causing them further harm by interfering with critical family relationships. The 2002 CFSR found that siblings in DHS custody are rarely placed together because ofthe shortage of foster homes. This problem continues today.
118. DHS also repeatedly fails to ensure that siblings in DHS custody who are not placed together at least have frequent visits with one another. DHS's routine denial of Plaintiff Children's right to sibling visitation keeps them from maintaining critical family relationships.
119. DHS also routinely fails to provide regular visits and contact between Plaintiff Children and their biological parents, even when reunification is the goal set by DHS. This failure deprives Plaintiff Children of critical parental relationships and family ties.
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C. DHS's Failure to Adequately Monitor the Safety of Children in DHS Custody Subjects Plaintiff Children to Harm or Imminent Risk of Harm 1. Excessive Caseloads, Inexperienced Caseworkers, Inadequate Supervision, High Turnover and Inadequate Training Threaten Basic Child Safety 120. DHS caseworkers are responsible for monitoring the safety and well-being
of foster children in state custody, ensuring that their service needs are being met, ensuring that the homes and facilities that care for them are meeting their needs, and ensuring that they move toward the goal of a permanent home out of state custody. Because of the vital role played by caseworkers, national professional standards prescribe caseload limits of between twelve and fifteen children per worker for foster care services, and caseload limits of no more than twelve investigation cases for workers conducting intake and child protective service investigations. National professional standards also prescribe supervisory ratios ofone supervisor to every five caseworkers.
121. DHS caseworkers consistently have caseloads that are at least two to three times higher than national standards. Currently, individual caseloads for foster care workers (also called "permanency planning workers") routinely exceed fifty children, with some workers having caseloads of more than one hundred children. Individual caseloads for "intake" and child protective services workers, who in Oklahoma are responsible for ensuring safety and services to Plaintiff Children after they are removed from their homes and before children are assigned to a permanency planning worker, routinely exceed forty-five investigation cases (and over one hundred children). Supervisors responsible for caseworkers often supervise seven or more caseworkers sometimes even up to eleven workers who in turn have excessive caseloads, making adequate supervision impossible.
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122. DRS caseworkers carry such high caseloads because DRS does not employ enough caseworkers to adequately serve all of the children in DRS custody. This pervasive problem has been well documented for many years, yet DRS has failed to address it. For example, every Annual Child Death Review Board report from 200 I to 2006 has stated that lowering caseloads to meet national standards would reduce child deaths, yet caseloads remain dangerously high today.
123. Due to a combination ofunmanageable workloads and poor caseworker support from DRS, turnover remains a serious problem, and leads to a largely inexperienced workforce. For example, due to excessive turnover at DRS, as of April of 2007, there were one hundred vacant child welfare specialist positions. In a December 5, 2007 article in the Daily Oklahoman, titled "DRS Falls Behind on Cases," a DRS representative admitted that the majority of DRS staffhas less than two years' experience.
124. Caseworkers leave DRS so frequently that their caseloads are absorbed by the already overloaded existing workforce. In fact, after caseworkers leave DRS, their cases often remain uncovered for weeks, or sometimes even months, until another caseworker first looks at them.
125. In addition to high caseloads and turnover, DRS fails to provide adequate training to caseworkers concerning the protection and care required of foster children and fails to ensure appropriate supervision of caseworkers. In fact, training and supervision are so minimal that caseworkers frequently are not familiar with basic DRS policies. DRS also routinely fails to hold caseworkers accountable for their failure to exercise any professional judgment in making decisions concerning the care of foster children.
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2. DHS's Dangerous Monitoring and Oversight Practices of Foster Homes and Facilities Harm Plaintiff Children and Expose Them to Imminent Risk of Harm
126. DHS has a policy, pattern, custom and/or practice of providing inadequate monitoring and oversight of foster homes and facilities that house Plaintiff Children - both DHSoperated homes and facilities and those that are directly managed by private agencies under contract with DHS. As a direct result ofDHS's failure to appropriately screen, approve and monitor homes and facilities where children in DHS custody are placed, PlaintiffChildren have been and continue to be harmed and placed at imminent risk of harm.
127. DHS caseworkers fail to make required visits with foster children and their caregIvers. Regular caseworker visits are necessary for monitoring a child's safety and wellbeing and the appropriateness of the child's placement, identifYing the child's needs, and arranging and monitoring the delivery of services to meet those needs. DHS policy requires caseworkers to make regular face-to-face contact at least once a month with the Plaintiff Children on their case10ads and with those children's caregivers, and also to visit foster homes at least monthly. For Plaintiff Children who are placed in emergency shelters, DHS caseworkers must have face-to-face contact within twenty-four hours of their entry into the shelter and a minimum of weekly visits while the child remains in the shelter.
128. Due to excessive caseloads, DHS caseworkers routinely fail to visit Plaintiff Children for months at a time, and sometimes fail to visit Plaintiff Children for six months or more. This failure jeopardizes the safety of Plaintiff Children on an ongoing basis, leaving them at risk of abuse, neglect or other maltreatment. When visits to children in DHS custody do occur, they are regularly made by inexperienced and unqualified "case aides," rather than by DHS caseworkers.
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129. The routine placement of Plaintiff Children far from their home communities has resulted in the DHS practice of assigning "secondary" DHS caseworkers to visit Plaintiff Children in the counties where they are currently housed. However, due to excessive workloads, "secondary" DHS caseworkers often fail to visit or otherwise monitor and supervise the Plaintiff Children assigned to them. Additionally, "secondary" DHS caseworkers routinely fail to share information or coordinate efforts with "primary" DHS caseworkers, who remain responsible for Plaintiff Children' s safety and well-being, and for implementing plans to seek and secure a permanent home out of state custody for Plaintiff Children.
130. DHS routinely fails to furnish basic, accurate and current information about Plaintiff Children to the juvenile courts and to the attorneys who represent Plaintiff Children, including required timely notification of PlaintiffChildren's placement moves.
131. DHS frequently fails to adequately screen and investigate potential foster parents and their homes before approving them for the placement of children in DHS custody and before putting PlaintiffChildren in their homes. For example, a recent report by the Oklahoma Commission on Children and Youth documented that, of sixteen foster homes in a particular county, four homes - or 25% had serious safety issues and never should have been approved for placement by DHS.
132. DHS policy requires all foster homes to be formally re-assessed and relicensed or approved on a yearly basis. This process is not consistently followed, and DHS regularly fails to complete these annual inspections. The pressure to keep foster homes open, due to the lack of placements for foster children, contributes to the routine failure by DHS to adequately review and re-license or approve homes to ensure their safety.
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133. DHS fails to adequately investigate reports or suspicions of abuse or neglect in foster homes and facilities, which places Plaintiff Children at serious risk of harm. DHS caseworkers regularly ignore complaints by children in DHS custody of abuse or neglect by their foster parents or facility staff and obvious signs of abuse or neglect in placements. DHS also fails to close foster homes promptly - or close them at all- where children in DHS custody have been subjected to abuse or neglect. In those instances where DHS does investigate allegations of abuse or neglect in foster homes, due to the shortage of foster homes, DHS routinely keeps children in the foster homes pending results of the investigation, even if there are allegations of serious injury.
134. DHS routinely fails to adequately screen, inspect, approve and certifY the homes of relatives (also called "kinship" homes) for foster children. DHS policy allows children in custody to be placed in kinship foster homes pending DHS approval ofthe homes, but only after criminal background checks and an initial home assessment are completed. These basic protections are routinely ignored. The initial assessments are assigned to DHS caseworkers who are overburdened with other responsibilities and onerous caseloads, sometimes in excess of one hundred children per worker. In violation ofDHS policy, DHS often fails to conduct the required criminal background checks on all other adults residing in the kinship home before placing Plaintiff Children in the home.
135. DHS inspections of facilities which house foster children are often cursory, as DHS inspectors do not interview foster children who are living in the facilities and, as a result, often overlook dangerous and inappropriate conditions. Even where violations are discovered and reported at facilities, DHS does not ensure that they are timely corrected, placing Plaintiff Children at risk ofharm.
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136. DHS often fails to adequately supervise and monitor the safety and quality of the homes, facilities and services provided by private agencies under contract with DHS.
137. DHS routinely fails to make reasonable efforts to locate children in DHS custody who have run away from their placements in order to ensure their safety and well-being. This poor monitoring and oversight practice harms Plaintiff Children and places them at imminent risk ofharm.
138. DHS denies adequate support to foster parents who take care ofPlaintiff Children, by failing to provide adequate initial and ongoing foster parent training and by failing to provide foster parents with basic and necessary information about the foster children who are placed in their homes. Additionally, due to excessive workloads, caseworkers are routinely inaccessible to foster parents.
139. Foster parents also fear retaliation by DHS for advocating on behalf of the foster children for whom they care. DHS workers sometimes remove Plaintiff Children from foster homes as a response to foster parents who assert themselves to get questions answered or to access needed services. As a result, foster parents are often wary of requesting help to obtain for foster children the services to which they are entitled. These practices harm Plaintiff Children and place them at imminent risk of harm, and reduce the number of appropriate foster parents who might otherwise be willing to provide homes for Plaintiff Children. D. Additional Dangerous Failings by DHS Subject Plaintiff Children to Harm or
Imminent Risk of Harm 1. DHS Fails to Provide Adequate Foster Care Maintenance Payments
for the Care of Plaintiff Children 140. Oklahoma receives federal funding to provide licensed foster parents with "foster care maintenance payments," which are defined by DHS policy as payments adequate to
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cover ''the cost of (and the cost of providing) food, clothing, shelter, daily supervisions, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to the child's home for visitation." Oklahoma accepts federal funding for foster care maintenance payments, but fails to provide payments to caregivers offoster children that cover the reasonable actual cost of care under federal law.
141. The foster care maintenance payments in Oklahoma are not based on a methodology reflecting the actual and reasonable payments that cover the cost of (and the cost of providing) food, clothing, shelter, daily supervisions, school supplies, a child's personal incidentals, liability insurance with respect to a child and reasonable travel to the child's home for visitation.
142. The actual foster care maintenance payment rates in Oklahoma fall far short of the actual and reasonable costs required by federal law. For example, DRS pays foster parents a basic foster care rate of only $365 a month - less than $12 a day - to raise a child up to six years old. According to a national research study published in 2007 by the University of Maryland, Children's Rights and the National Foster Parent Association, Oklahoma's foster care maintenance payments would need to be increased by over 50% before they could begin to cover the reasonable and actual costs of raising a child pursuant to federal law.
143. DRS's failure to provide adequate foster care maintenance payments as required by federal law directly contributes to the drastic shortage in the number and array of foster homes for PlaintiffChildren in Oklahoma. DRS provides foster parents with payments for the direct and intended benefit of Plaintiff Children that are too low to attract and retain qualified foster parents, or to provide foster parents with adequate resources such that Plaintiff Children can receive basic necessities. As a result, DRS's inadequate foster care maintenance payments
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directly contribute to Plaintiff Children being routinely placed in grossly inappropriate emergency shelters, and other unsafe and inappropriate homes and facilities.
144. Additionally, because the cost of caring for foster children becomes more expensive as children get older, adequate foster care maintenance payments under federal law are higher for older children than for infants and toddlers. However, DHS has a policy, pattern, custom and/or practice of failing to increase the basic rate for foster care maintenance payments as a function of age unless foster parents specifically request such an increase. As a result, many foster parents in Oklahoma who are raising teenagers receive grossly inadequate foster maintenance payments that are set at the already inadequate rate for infants and toddlers.
2. DHS Fails to Plan for and Take Mandated Steps to Find Permanent and Safe Homes and Exits From State Custody for Plaintiff Children
145. DHS routinely fails to meet statutory timetables and other requirements for providing Plaintiff Children with specific services and steps to ensure their prompt placement in a permanent home outside of state custody, also called "permanency planning" services. These requirements include determining whether children can be safely and promptly returned home and, if DHS determines that is not appropriate, taking mandated steps to place children with an alternative permanent family, usually through adoption.
146. For example, DHS routinely fails to conduct timely required "diligent searches" for possible relatives who can care for Plaintiff Children, as soon as they are brought into state custody, in violation ofDHS policy, federal law and reasonable professional standards. This DHS failure directly results in the placement of Plaintiff Children with strangers, and the loss of opportunities for Plaintiff Children to live with family members while in foster care or permanently out of state custody. This DHS failure also subjects Plaintiff Children to the emotional and psychological trauma of additional, unnecessary placement moves, as DHS
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routinely pulls PlaintiffChildren out of the homes of foster parents with whom they have formed relationships and places them in relative homes that DHS could easily have identified earlier.
147. Federal and state law, as well as DHS policy, require that a petition to terminate parental rights (also called a "TPR" petition) must be filed for children who have been in state custody for fifteen of the last twenty-two months in order to begin the process of making them legally available for adoption, unless compelling reasons against filing a TPR are documented in the child's case file. According to recent state data, Oklahoma was in violation of this requirement more than half the time. Even when parental rights have been terminated for children in DHS custody, DHS fails to take steps to move foster children promptly and safely towards adoption, forcing them to needlessly languish in state custody.
148. DHS also fails to provide required services to foster children aged sixteen and older who cannot be returned home or adopted to help prepare them to live on their own when they are discharged from DHS custody at the age of eighteen, also known as "independent living services." These services include job training, drivers education courses, life skills training and college preparation courses. Such services are routinely not provided to eligible Plaintiff Children. Additionally, required "independent living plans" are rarely provided for eligible foster youth and, when they are provided, are grossly inadequate. As a result, older foster children routinely leave DHS custody without the basic life skills and training necessary to live on their own, and many face unemployment, long term public assistance, incarceration or homelessness.
3. DHS Fails to Arrange Mental Health Services for Plaintiff Children 149. Children entering foster care often have experienced significant trauma, resulting in physical, emotional or behavioral issues that require mental health treatment.
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Plaintiff Children are routinely prescribed psychotropic medications to ''manage'' their behaviors, yet DHS fails to arrange for mental health treatment and therapy to address Plaintiff Children's mental health needs. This DHS failure harms Plaintiff Children and places them at imminent risk of harm.
4. Plaintiff Children Are Denied Adequate and Effective Legal Representation in the Juvenile Courts
150. Under Oklahoma law, an attorney must be appointed to represent every child in a proceeding to determine if the child is deprived, and every child who has been subject to abuse or neglect. These attorneys are required to provide their clients with adequate and effective legal representation and zealous advocacy in order to ensure their safety and well-being and to promote their best interests, throughout their experience in the juvenile courts.
151. Among other things, attorneys representing Plaintiff Children in the juvenile courts must investigate cases and meet with their client children outside of court prior to court proceedings. Published national standards require that attorneys representing abused and neglected children have caseloads of no more than one hundred individual children per attorney, to make it possible for them to perform these and other critical functions in providing legal representation to foster children.
152. However, attorneys charged with representing abused and neglected children in Oklahoma routinely carry unmanageably high caseloads. For example, attorneys representing Plaintiff Children in Oklahoma City have caseloads in excess of 1,300 children, and attorneys representing PlaintiffChildren in juvenile court in Tulsa have caseloads in excess of 500 children.
153. As a result of the excessively high workloads of attorneys assigned to represent Plaintiff Children, these lawyers are routinely unable to consult with their clients
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before court appearances and are unable to provide adequate or effective counselor zealous advocacy. DRS regularly fails to inform attorneys of the location of the Plaintiff Children they represent, a problem compounded by the frequent multiple moves to which foster children are subjected while in DRS custody. DRS also frequently fails to take steps to facilitate meetings between Plaintiff Children and their attorneys.
154. In 2006, due to pressure from attorneys, DRS contracted with the American Bar Association ("ABA") to conduct a study of the quality oflegal representation for children in the juvenile courts. The ABA conducted the study and then circulated a draft report in 2007, which stated: "The quality of legal representation for children, parents and the State is inadequate ... [T]here are not enough attorneys to do the work. Current caseloads leave attorneys in an untenable position; they are painfully aware of what is required to properly serve their clients and want to provide the highest quality of legal representation possible - but given unmanageably high caseloads are unable to perform fundamental responsibilities." The ABA draft report noted that, due to the sheer volume of their caseloads, these attorneys were put in positions where they were violating their ethical responsibilities to the children they represent.
155. PlaintiffChildren are routinely denied adequate and effective legal representation in the juvenile courts. As a result, Plaintiff Children are also denied an important safeguard to identify potential threats to their safety and well-being while in DRS custody, placing them at risk of imminent harm.
5. Breach of the Oklahoma State Plan Contracts Harms Plaintiff Children
156. The federal government has approved the State Plans submitted by Oklahoma in order to receive federal fmancial assistance under Titles IV-B and IV-E of the Social Security Act, to help fund the state's child welfare, foster care and adoption programs.
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These State Plans are contracts into which the State of Oklahoma enters for the express and direct benefit of Plaintiff Children, who are direct and intended third-party beneficiaries of these contracts. Defendants are directly responsible for fulfilling the obligations undertaken by Oklahoma when it entered into these State Plan contracts, including but not limited to the obligation to administer the programs in accordance with specific relevant state statutes, regulations and policies and all applicable federal statutes, regulations and other official issuances of the United States Department of Health and Human Services.
157. Defendants, who directly and indirectly control and are responsible for the policies and practices ofDHS, have breached their obligations to Plaintiff Children under these State Plan contracts, and Plaintiff Children have been harmed and placed at imminent risk of harm as a result of this breach. VII. Additional Factual Allegations Concerning Named Plaintiffs
D.G.
158. DHS has victimized D.G. through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide services necessary to facilitate his prompt and safe reunification with his biological parents, and the failure to seek and secure another permanent home for D.G. out of state custody through adoption. These harms and D.G.'s continued instability and risk of harm are a direct result ofDHS's drastic placement shortage, its failure to find an appropriate placement for D.G. and its failure to provide adequate monitoring and oversight over its placements and over his care.
159. D.G. entered DHS custody in Oklahoma County in September of2007, when he was only seven days old, due to his mother's chronic drug abuse. With no foster homes
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available, DHS ftrst placed D.G. in the poorly supervised baby Annex of the Pauline Mayer Emergency Shelter in Oklahoma City. In violation ofDHS policy and reasonable professional standards limiting shelter stays for children under ftve years old to a maximum of twenty-four hours, DHS kept D.G. languishing in the shelter for at least twenty-two days.
160. In September of 2007, due to inadequate supervision by DHS at the overcrowded Mayer Emergency Shelter, a DHS worker carrying D.G. and another infant at the same time dropped D.G. who was then less than a month old and he fell and struck his head on the floor. DHS did not take D.G. to the hospital until the next day, where he was diagnosed with a fractured skull.
161. After D.G.'s stay at the hospital, DHS placed D.G. in an "emergency foster home" for seventeen days. DHS then moved D.G., at the age of two months, to another temporary foster home, where he currently lives, likely to be moved yet again.
162. D.G. has received dangerously poor monitoring and oversight from DHS during his time in state custody. With no opportunity to form a relationship with a consistent and safe adult caregiver, D.G. waits for a stable and permanent placement as he faces more and more moves in foster care. In addition to its failure to keep D.G. safe while in state custody, DHS failed to provide the services necessary to facilitate D.G.'s prompt and safe reuniftcation with his biological parents. Although the parental rights ofD.G.'s parents have now been terminated, making him legally available for adoption, DHS has failed to seek and secure another permanent home for D.G. through adoption, so he can leave DHS custody.
163. DHS's policies and practices have causedD.G. irreparable harm and continue to subject D.G. to the imminent risk of irreparable harm. DHS has violated D.G.'s constitutional and statutory rights by: failing to protect him from unnecessary harm and failing
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to keep him reasonably safe from hann while in government custody; failing to provide him with a living environment that protects his physical, mental and emotional safety and well-being; failing to provide him with services necessary to prevent him from deteriorating or being hanned physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing him in an emergency shelter or other emergency, temporary placements that are contrary to his individual needs and for extended periods, in violation of any reasonable professional judgment; failing to provide him with appropriate planning and services directed toward ensuring that he can leave foster care and grow up in a pennanent family; failing to provide him with treatment and care consistent with the purpose of the assumption of custody by DRS; failing to provide him care, treatment, and services, detennined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline of his DRS caseworkers; failing to provide adequate monitoring of his current status and needs; failing to place him in the least restrictive placement according to his needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse or neglect while he was in DRS custody; failing to adequately screen foster homes prior to placing him in such homes; and failing to provide him with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for his essential needs and services.
e.s.
164. DRS has victimized C.S. through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide required visits from her DRS caseworkers, the failure to arrange regular contact with her
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siblings, the failure to provide required medical treatment, and the failure to provide services necessary to facilitate her prompt and safe reunification with her biological mother or, if DHS determines that is not appropriate, the failure to seek and secure another permanent home for C.S. out of state custody through adoption. These harms and C.S.'s continued instability and risk of harm are a direct result ofDHS's drastic placement shortage, its failure to find an appropriate placement for C.S. and its failure to provide adequate monitoring and oversight over its placements and over her care.
165. C.S. entered DHS custody in Tulsa County in February of 2007, when she was only a few days old, due to her mother's chronic drug abuse. In her first few months in custody, DHS moved C.S. through an emergency shelter, an "emergency foster home" and three foster homes. DHS then placed C.S. with a relative in an unsafe and inadequately monitored kinship foster home, where she was thrown against a wall, fracturing her skull, and where she was likely subjected to Shaken Baby Syndrome. After C.S. was removed from the kinship foster home and hospitalized for her injuries, with no foster homes available, DHS placed the then fivemonth-old C.S. in the overcrowded and poorly supervised "Little House" for babies at the Laura Dester Emergency Shelter in Tulsa, a grossly inappropriate placement for an infant.
166. DHS then moved C.S. through three temporary foster homes over the next two months, after which DHS placed her with her biological mother in a group facility in Tulsa, where C.S. remained in DHS custody. Due to DHS's failure to adequately monitor this placement, C.S. was severely neglected. Her safety and care were so poorly supervised that she was removed and hospitalized for severe dehydration and subsequently suffered from seizures.
167. After her hospitalization, DHS moved C.S. through two more foster homes over the next few months, during which time she suffered from a severe, untreated and
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worsening respiratory tract infection. DHS failed to provide basic monitoring or supervision of C.S.'s health and safety and, when DHS removed C.S. from the second foster home, she had open sores on her legs, was dehydrated, was oozing puss and phlegm out of her mouth and nose, and was struggling to breathe.
168. When DHS placed C.S. in her next temporary foster home her sixteenth placement in eleven months in DHS custody - despite C.So's clearly critical medical condition, DHS failed to provide the foster parents with any information about C.S. 's background, prior harms or current medical condition or needs. The foster mother immediately took C.S. to a
doctor, who diagnosed e.s. with a "failure to thrive" and Respiratory Syncytial Virus ("RSV"), a
highly contagious but easily treatable respiratory tract infection that can be fatal if untreated for children under three years old, and prescribed her antibiotics. On a later visit to the doctor, the foster mother also learned that C.S. had serious allergies to pets, and her allergies were inflamed because DHS had placed her in a home that had both cats and dogs. As a result, DHS moved C.S. to another temporary foster home where she currently resides, likely to be moved yet again.
169. C.S. has received dangerously poor monitoring and oversight from DHS during her time in state custody. After suffering from severe abuse in DHS custody, and numerous inappropriate and unnecessary placement moves, C.S. is an eleven-month-old baby who, due to DHS's failings, has not had a single opportunity to form a relationship with a safe, consistent adult caregiver in her entire life. She has developed Reactive Attachment Disorder, manifested by her crying out when an adult tries to hold her. DHS has failed to arrange for C.S. to have regular contact with her siblings in order to maintain critical family relationships. DHS has also failed to provide the services necessary to facilitate C.S. 's prompt and safe reunification with her biological mother or, ifDHS determines that is not appropriate, to seek and secure
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another permanent home for C.S. through adoption, so she can leave DHS custody. As a result, at any moment, C.S. is at risk of more moves, more instability and more harm from inappropriate placements.
170. DHS's policies and practices have caused C.S. irreparable harm and continue to subject C.S. to the imminent risk of irreparable harm. DHS has violated C.S. 's constitutional and statutory rights by: failing to protect her from unnecessary harm and failing to keep her reasonably safe from harm while in government custody; failing to provide her with a living environment that protects her physical, mental and emotional safety and well-being; failing to provide her with services necessary to prevent her from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing her in emergency shelters or other emergency, temporary placements that are contrary to her individual needs and for extended periods, in violation of any reasonable professional judgment; failing to provide her with appropriate planning and services directed toward ensuring that she can leave foster care and grow up in a permanent family; failing to provide her with treatment and care consistent with the purpose of the assumption of custody by DHS; failing to provide her care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline of her DHS caseworkers; failing to provide adequate monitoring of her current status and needs; failing to place her in the least restrictive placement according to her needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse or neglect while she was in DHS custody; failing to adequately screen foster homes prior to placing her in such homes;
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failing to preserve family connections and to facilitate visits with her siblings; and failing to provide her with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for her essential needs and services. J.B.
171. DRS has victimized lB. through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide required visits from his DRS caseworkers, the failure to arrange regular contact with his siblings, and the failure to provide services necessary to facilitate his prompt and safe reunification with his biological mother or, if DRS determines that is not appropriate, the failure to seek and secure another permanent home for J.B. out of state custody through adoption. These harms and J.B.'s continued instability and risk of harm are a direct result of DRS's drastic placement shortage, its failure to find an appropriate placement for J.B. and its failure to provide adequate monitoring and oversight over its placements and over his care.
172. J.B. entered DRS custody in Oklahoma County in October of2006, when he was only two days old, due to neglect by his mother and sexual abuse perpetrated on his siblings by a male living with his mother. After placing lB. in a foster home for a few months, DRS moved J.B. and three of his siblings back into the home of their biological mother on a trial home reunification, although DRS had not provided J.B.'s mother with the services necessary to enable her to care for her children. DRS retained custody of lB. and was required to provide him with supervision, monitoring and services to ensure his safety during the entire trial home reunification, but failed to do so. J.B.'s DRS caseworker failed to make required visits to J.B. in his mother's home. During the trial home reunification, J.B.'s mother continued to use drugs, and she continued to allow the man who had sexually abused lB.'s siblings to live in her house.
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In October of 2007, DHS fmally removed J.B. from his mother's home due to neglect and the dangerous conditions in her home.
173. With no foster homes available, DHS placed the then one-year-old J.B. in the overcrowded and poorly supervised baby Annex of the Pauline Mayer Emergency Shelter in Oklahoma City. DHS kept J.B. in the Mayer Emergency Shelter for over thirty consecutive days, until late November of 2007, in violation ofDHS policy and reasonable professional standards limiting shelter stays for children under five years old to a maximum of twenty-four hours.
174. During DHS's placement of J.B. in the Mayer Emergency Shelter, J.B. was poorly supervised and unmonitored while in a bath, and he suffered severe burns. After the incident occurred, DHS failed to immediately report the suspected abuse or neglect. J.B. was taken to the hospital where a physician diagnosed J.B. with first- and second-degree burns on both ofhis feet and reported suspected abuse. The second-degree burns on J.B.'s left foot were so severe that they resulted in the complete loss of his skin from his foot to his toes. DHS then moved J.B. from the shelter to a temporary foster home where he currently lives while his burns heal, after which, DHS plans to move him yet again.
175. J.B. has received dangerously poor monitoring and oversight from DHS during his time in state custody. After suffering from severe abuse and numerous placement moves in DHS custody, J.B. is a sixteen-month-old child who, due to DHS's failings, has not had a single opportunity to form a relationship with a safe, consistent adult caregiver in his entire life. DHS has failed to arrange for J.B. to have regular contact with his siblings in order to maintain critical family relationships. In addition, DHS has failed to provide the services necessary to facilitate J.B.'s prompt and safe reunification with his biological mother or, ifDHS determines
51

that is not appropriate, to seek and secure another permanent home for J.B. through adoption, so he can leave DRS custody. Instead, J.B. waits indefinitely for a long term placement, at risk of being moved yet again.
176. DRS's policies and practices have caused J.B. irreparable harm and continue to subject IB. to the imminent risk of irreparable harm. DRS has violated J.B. 's constitutional and statutory rights by: failing to protect him from unnecessary harm and failing to keep him reasonably safe from harm while in government custody; failing to provide him with a living environment that protects his physical, mental and emotional safety and well-being; failing to provide him with services necessary to prevent him from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing him in emergency shelters or other emergency, temporary placements that are contrary to his individual needs and for extended periods, in violation of any reasonable professional judgment; failing to provide him with appropriate planning and services directed toward ensuring that he can leave foster care and grow up in a permanent family; failing to provide him with treatment and care consistent with the purpose of the assumption of custody by DRS; keeping him in DRS custody longer than is necessary to accomplish the purposes oftaking him into DRS custody; failing to provide him care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline ofhis DRS caseworkers; failing to provide adequate monitoring of his current status and needs; failing to place him in the least restrictive placement according to his needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse
52

or neglect while he was in DHS custody; failing to adequately screen foster homes prior to placing him in such homes; subjecting him to state-created dangers by placing him on unsupervised visits or trial home reunification with family members without taking reasonable steps and providing necessary supervision to ensure his safety; failing to preserve family connections and to facilitate visits with his siblings; and failing to provide him with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for his essential needs and services. A.P.
177. DHS has victimized AP. through unsafe placements and numerous . moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide required visits from her DHS caseworkers, and the failure to provide services necessary to facilitate her prompt and safe reunification with her biological parents or, ifDHS determines that is not appropriate, the failure to seek and secure another permanent home for AP. out of state custody through adoption. These harms and AP. 's continued instability and risk of harm are a direct result ofDHS's drastic placement shortage, its failure to find an appropriate placement for AP. and its failure to provide adequate monitoring and oversight over its placements and over her care.
178. AP. entered DHS custody in Rogers County in July of 2006, when she was two years old, along with her four-year-old sister H.P., due to neglect and their mother's mental health problems. DHS first placed AP. and H.P temporarily in an "emergency foster home" for two days before moving them to another foster home for a month.
179. In October of 2006, DHS directed AP.'s mother to undergo a psychiatric evaluation, which found that she was in a severe state of mental health crisis, and in immediate
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need of services to stabilize her condition and put her on track to possibly resume care of her daughters. However, DHS never communicated the findings of the evaluation to A.P.' smother
'.
and failed to implement the recommendations or provide any services. As a result, A.P.' s mother's mental health condition has significantly deteriorated, and A.P. has been denied the opportunity for a possible safe reunification with her mother.
180. Instead, DHS removed A.P. and H.P. from their foster home and placed them with their biological father on a trial home reunification, although DHS had not provided A.P.' s father with the services necessary to enable him to care for his children. DHS retained custody of A.P. and H.P. and was required to provide them with supervision, monitoring and services to ensure their safety during the entire trial home reunification period, but failed to do so. A.P.'s DHS caseworker failed to make the required visits to her in her father's home. As part of this placement arrangement, A.P.'s father was not to allow the girls to have any contact with their mother. However, their mother was, openly, still living in the home, and her untreated and deteriorating mental health condition placed A.P. at immediate risk ofharm. After A.P. and H.P. had lived in their father's home for seven months, DHS finally removed them from the trial home reunification.
181. DHS then placed A.P. and H.P. together in a kinship home in May of 2007. Again, DHS failed to supervise and monitor the safety of the placement and the children in the home. In violation ofDHS policy and reasonable professional standards, DHS failed to properly perform the required background checks prior to placing A.P. in the home. It was only after A.P. had been living in the home that DHS discovered a prior confirmed child abuse allegation against the kinship foster parent, rendering the home unsafe. In addition, H.P. started exhibiting highly inappropriate sexual behaviors toward A.P. in this home, consistent with her
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having been recently sexually abused, and began to sexually abuse A.P. and other children in the home. In June of 2007, DHS moved A.P. and H.P. - together into another foster home, where H.P. continued to sexually abuse A.P. It was not until September of 2007 that DHS fmally separated A.P. from H.P. and moved her to another temporary foster home, where she currently lives, likely to be moved yet again.
182. A.P. has received dangerously poor monitoring and oversight from DHS during her time in state custody. During A.P.'s eighteen months in DHS custody, DHS has already changed her assigned DHS caseworker five times, due to the excessive turnover in the DHS workforce. DHS has also failed to ensure that A.P. has received required visits from her caseworkers. DHS has shuffled her among several unsafe placements, and failed to provide the services necessary to facilitate A.P.'s prompt and safe reunification with her biological parents or, ifDHS determines that is not appropriate, to seek and secure another permanent home for A.P. through adoption, so she can leave DHS custody. Instead, she waits indefinitely for a long term placement, at risk ofbeing moved yet again.
183. DHS's policies and practices have caused A.P. irreparable harm and continue to subject A.P. to the imminent risk of irreparable harm. DHS has violated A.P.'s constitutional and statutory rights by: failing to protect her from unnecessary harm and failing to keep her reasonably safe from harm while in government custody; failing to provide her with a living environment that protects her physical, mental and emotional safety and well-being; failing to provide her with services necessary to prevent her from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing her in emergency shelters or other emergency, temporary placements that are contrary to her individual
55

needs and for extended periods, in violation of any reasonable professional judgment; failing to provide her with appropriate planning and services directed toward ensuring that she can leave foster care and grow up in a permanent family; failing to provide her with treatment and care consistent with the purpose ofthe assumption ofcustody by DHS; keeping her in DHS custody longer than is necessary to accomplish the purposes oftaking her into DHS custody; failing to provide her care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline ofher DHS caseworkers; failing to provide adequate monitoring of her current status and needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse or neglect while she was in DHS custody; failing to adequately screen foster homes prior to placing her in such homes; subjecting her to state-created dangers by placing her on unsupervised visits or trial home reunification with family members without taking reasonable steps and providing necessary supervision to ensure her safety; and failing to provide her with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for her essential needs and services. J.A.
184. DHS has victimized J.A. through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to arrange regular contact with his siblings, and the failure to provide services necessary to facilitate his prompt and safe reunification with his biological parents or, ifDHS determines that is not appropriate, the failure to seek and secure another permanent home for J.A. out of state custody through adoption. These harms and J.A.'s continued instability and risk of harm are the direct
56

result ofDHS's drastic placement shortage, its failure to fmd an appropriate placement for lA. and its failure to provide adequate monitoring and oversight over its placements and over his care.
185. J.A. entered DHS custody in Oklahoma County in December of 2006, when he was four years old, due to neglect and his parents' chronic substance abuse problems. In 2002, after lA. and his mother both tested positive for drugs at J.A. 'a birth, DHS requested that J.A. be placed in state custody to ensure his safety. However, DHS was unable to locate J.A. and, instead, placed him on child protective services alert. It was only in 2006, after J.A.'s mother gave birth to another drug-addicted baby, that DHS brought lA. into custody. With no foster homes available, DHS first placed J.A. in the overcrowded and poorly supervised baby Annex of the Pauline Mayer Emergency Shelter for a week, in violation ofDHS policy and reasonable professional standards limiting shelter stays for children under five years old to a maximum oftwenty-four hours.
186. With still no foster homes available, DHS moved J.A. to an "emergency foster home" for over a month and then placed him temporarily in a kinship foster home with his uncle, without making any effort to determine if his uncle's home could be a long-term placement for J.A. After lA. had spent six months in the kinship home and developed a relationship with his uncle's family, DHS moved him abruptly to an emergency shelter in Creek County when his uncle moved out of state with his family. During the more than six weeks that DHS kept J.A. in this emergency shelter, J.A.'s behavior became more disruptive.
187. Still lacking placement options, DHS moved J.A. to yet another emergency shelter for five days, this time in Cleveland County, and then moved him yet again to
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another emergency shelter for six weeks, this time in Pittsburgh County. By this time, DRS had kept lA. in three different emergency shelters for ninety consecutive days.
188. DRS then moved lA. to a foster home for approximately one month, after which DRS moved J.A. to an "emergency foster home" for one day and then moved him again, this time to a residential treatment facility in Cleveland County. DRS kept J.A. in this institutional facility for over a week, after which he was placed in a temporary foster home in Canadian County, where he currently lives, likely to be moved yet again.
189. J.A. has received dangerously poor monitoring and oversight from DRS during his time in state custody. After a year in DRS custody, J.A. has been shuffled through nine different placements, including numerous institutional facilities, without adequate stability, treatment or care from DRS. DRS has failed to arrange for J.A. to have any visits with his siblings in order to maintain critical family relationships. In addition, DRS has failed to provide the services necessary to facilitate J.A. 's prompt and safe reunification with his biological parents or, if DRS determines that is not appropriate, to seek and secure another permanent home for JA. through adoption, so he can leave DRS custody. Instead, J.A. waits indefmitely for a long term placement, at risk ofbeing moved yet again.
190. DRS's policies and practices have caused J.A. irreparable harm and continue to subject lA. to the imminent risk of irreparable harm. DRS has violated J.A. 's constitutional and statutory rights by: failing to protect him from unnecessary harm and failing to keep him reasonably safe from harm while in government custody; failing to provide him with a living environment that protects his physical, mental and emotional safety and well-being; failing to provide him with services necessary to prevent him from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to
58

safe and secure foster placements, appropriate monitoring and supervision; placing him in emergency shelters or other emergency, temporary placements that are contrary to his individual needs and for extended periods, in violation of any reasonable professional judgment; failing to provide him with appropriate planning and services directed toward ensuring that he can leave foster care and grow up in a permanent family; failing to provide him with treatment and care consistent with the purpose of the assumption of custody by DHS; keeping him in DHS custody longer than is necessary to accomplish the purposes of taking him into DHS custody; failing to provide him care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline ofhis DHS caseworkers; failing to provide adequate monitoring of his current status and needs; failing to place him in the least restrictive placement according to his needs; failing to develop and implement timely written case plans that include mandated elements; failing to adequately screen foster homes prior to placing him in such homes; failing to preserve family connections and to facilitate visits with his siblings; and failing to provide him with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for his essential needs and services. J.P.
191. DHS has victimized J.P. through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide required visits from his DHS caseworkers, the failure to arrange regular contact with his siblings, the failure to arrange adequate and basic educational opportunities, the failure to arrange consistent and appropriate mental health services, and the failure to provide services necessary to facilitate his prompt and safe reunification with his biological parents or, ifDHS determines that
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is not appropriate,the failure to seek and secure another pennanent home for J.P. out of state custody through adoption. These harms and J.P.'s continued instability and risk of harm are a direct result ofDHS's drastic placement shortage, its failure to find an appropriate placement for J.P. and its failure to provide adequate monitoring and oversight over its placements and over his care.
192. J.P. entered DHS custody in Oklahoma County in May of 2006, when he was six years old, due to physical abuse, exposure to domestic violence and lack of supervision by his aunt, with whom he and his two brothers had been living since his mother was incarcerated. With no foster homes available, DHS first placed J.P. in the overcrowded and poorly supervised Pauline Mayer Emergency Shelter in Oldahoma City for ten days. DHS then moved J.P. through three temporary foster homes in six months.
193. In November of 2006, DHS placed J.P. in a foster home where he was physically abused by his foster mother for almost a year. During this time, J.P. did not receive required visits from his DHS caseworkers to monitor his safety. In May of2007, although J.P. told his DHS caseworker that his foster mother and her teenage daughter regularly pinned his arms behind his back and beat him, DHS failed to adequately investigate J.P.'s allegation of abuse and kept him in this unsafe home. It was not until October of2007, when J.P. was brought to the hospital with bruises all over his body caused by his foster mother whipping him with a belt, that DHS finally removed him from this home.
194. After J.P.'s stay at the hospital, DHS placed him in a respite foster home for five days before placing him in another temporary foster home, where he currently lives, likely to be moved yet again.
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195. J.P. has received dangerously poor monitoring and oversight from DRS during his time in state custody. After a year and a half in DRS custody, J.P. has suffered from abuse and has been shuffled through eight different placements, without adequate stability, treatment or care from DRS. DRS has failed to arrange for J.P. to have regular visits with his brothers, who are also in DRS custody, in order to maintain critical family relationships. Although J.P. currently receives multiple psychotropic medications, DRS has failed to arrange consistent and appropriate mental health services for J.P. to address the emotional and psychological trauma he has suffered and continues to suffer in DRS custody.
196. DRS has also failed to arrange adequate and basic educational opportunities for J.P. during his time in DRS custody. DRS has failed to ensure that J.P.'s educational records follow his numerous placement moves. DRS has caused J.P. to change schools numerous times, to miss an unnecessary amount of school, and to fall behind in school, without any plan or services to give him the educational supports he needs.
197. DRS has failed to provide the services necessary to facilitate J.P. 's prompt and safe reunification with his biological parents or, if DRS determines that is not appropriate, to seek and secure another permanent home for J.P. through adoption, so he can leave DRS custody. Instead, J.P. waits indefmitely for a long term placement, at risk of being moved yet agam.
198. DRS's policies and practices have caused J.P. irreparable harm and continue to subject J.P. to the imminent risk of irreparable harm. DRS has violated J.P.'s constitutional and statutory rights by: failing to protect him from unnecessary harm and failing to keep him reasonably safe from harm while in government custody; failing to provide him with a living environment that protects his physical, mental and emotional safety and well-being;
61

failing to provide him with services necessary to prevent him from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing him in emergency shelters or other emergency, temporary placements that are contrary to his individual needs and for extended periods, in violation ofDHS policy and any reasonable professional judgment; failing to provide him with appropriate planning and services directed toward ensuring that he can leave foster care and grow up in a permanent family; failing to provide him with treatment and care consistent with the purpose of the assumption of custody by DHS; keeping him in DHS custody longer than is necessary to accomplish the purposes of taking him into DHS custody; failing to provide him care, treatment and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline of his DHS caseworkers; failing to provide adequate monitoring ofhis current status and needs; failing to place him in the least restrictive placement according to his needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse or neglect while he was in DHS custody; failing to preserve family connections and to facilitate visits with his siblings; failing to arrange adequate and basic educational opportunities; failing to adequately screen foster homes prior to placing him in such homes; and failing to provide him with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for his essential needs and services.
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199. DHS has victimized R.J. through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide required visits from his DHS caseworkers, the failure to arrange regular contact with his siblings, the failure to arrange adequate and basic educational opportunities, the failure to arrange consistent and appropriate mental health services, the failure to provide services necessary to facilitate his prompt and safe reunification with his biological mother, and the failure to seek and secure another permanent home for R.J. out of state custody through adoption. These harms and R.J.'s continued instability and risk of harm are a direct result ofDHS's drastic placement shortage, its failure to find an appropriate placement for R.J. and its failure to provide adequate monitoring and oversight over its placements and over his care.
200. R.I. entered DHS custody in Oklahoma County in October of 1999, when he was three years old, due to neglect and sexual abuse perpetrated on R.I.'s sisters by his mother's boyfriends. With no foster homes available, DHS first placed R.J. in the overcrowded and poorly supervised Pauline Mayer Emergency Shelter. DHS then moved him through two "emergency foster homes" in less than a month, followed by a placement in a foster home for one day, after which DRS moved R.J. yet again.
201. Between 2000 and 2002, DHS shuffled R.I. through another five foster homes as his behavior became predictably more difficult due to the constant moves and DHS's poor oversight.
202. In 2002, DHS placed R.J. and his siblings back in the home of his biological mother on a trial home reunification, although DRS had not provided R.J.' smother with the services necessary to enable her to care for her children. DHS retained custody ofR.J.
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and was required to provide him with supervision, monitoring and services to ensure his safety during the entire trial home reunification period, but failed to do so. R.I's DHS caseworker failed to make the required visits to him in his mother's home. During the trial home reunification, R.I ' s mother continued to use drugs, and she continued to allow men in her home who had a history of sexually abusing children. In June of 2002, DHS closed the case and returned RI and his siblings to his mother's custody. R.I.'s mother's home remained unsafe and RJ.'s sisters were sexually abused, but it was not until October of2004 that DHS fmally removed R.J. and his siblings due to neglect and abuse.
203. Upon re-entering DHS custody, this time in Tulsa County, DHS placed the then eight-year-old R.J. in the Laura Dester Emergency Shelter for two months because of the drastic shortage of foster homes. DHS then moved R.J. to a temporary foster home for several months, after which he was again returned to the Laura Dester Emergency Shelter.
204. In May of 2005, DHS placed R.I. and one of his siblings in an unsafe, poorly supervised and inadequately monitored foster home in Wagoner County. Rllived in this home for over eighteen months and, during this time, suffered repeated physical abuse as his foster mother regularly beat him with a switch. In early 2006, DHS fmally removed R.J. from this abusive foster home. However, with no foster homes available, DHS placed him in an emergency shelter in Cherokee County for about one month until, due to overcrowding in that shelter, DHS moved him to another emergency shelter in Okmulgee County.
205. DHS then moved R.I into a temporary foster home in Tulsa County for two weeks before placing him back in the Laura Dester Emergency Shelter for three weeks. DHS moved R.J. to another temporary foster home for six weeks, after which DHS placed him in a group home in May of 2007, where he now resides.
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206. R.1.'s current group home placement is unsafe, poorly monitored, and fails to meet R.J.'s needs. It is located in an old motel near Interstate 1-44, in walking distance of several seedy bars, strip clubs and truck stops. The only immediate outdoor space where the resident children can play is the cement parking lot outside the group home. Foster children of ages five through eighteen are housed together in this home without age or developmentally appropriate programs or treatment. Supervision in the home is so poor, and the conditions in the home so unsanitary and unsafe, that children placed in this home frequently run away from the home for their own safety.
207. R.J. is currently separated from all of his six siblings. R.J.'s brothers J.J.1. (eleven years old), E.H. (ten years old), and J.1. (eight years old) and are in foster care in DHS custody and have been adjudicated deprived. R.J.' s three brothers have been moved by DHS through 19, 11 and 17 placements, respectively. R.J. also has three sisters who are no longer in DHS custody. DHS has failed to arrange for R.J. to have regular contact with his siblings and the opportunity to maintain critical family relationships while in DHS custody.
208. R.J. has received dangerously poor monitoring and oversight from DHS during his time in state custody. While in custody, R.J. has suffered from abuse and has been shuffled through more than twenty different placements, including six stays at grossly inappropriate emergency shelters, without adequate stability, treatment or care from DHS. Although R.I. currently receives multiple psychotropic medications, DRS has failed to arrange consistent and appropriate mental health services for R.J. to address the emotional and psychological trauma he has suffered and continues to suffer in DHS custody.
209. DHS has also failed to arrange adequate and basic educational opportunities for R.I. during his time in DHS custody. DHS has failed to ensure that R.J. 's
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educational records have followed his numerous placement moves. DHS has caused RJ. to change schools, to miss an unnecessary amount of school, and to fall behind in school, without any plan or services to give him the educational supports he needs.
210. DHS failed to provide the services necessary to facilitate RJ.'s prompt and safe reunification with his biological mother. The parental rights of RJ.'s parents were not terminated until early 2007, making him legally available for adoption. However, DHS has failed to seek and secure another permanent home for RJ. through adoption, so he can leave DHS custody. Instead, R.J. waits indefmitely for a long term placement, at risk of being moved yet again.
211. DHS's policies and practices have caused RJ. irreparable harm and continue to subject RJ. to the imminent risk of irreparable harm. DHS has violated R.J.'s constitutional and statutory rights by: failing to protect him from unnecessary harm and failing to keep him reasonably safe from harm while in government custody; failing to provide him with a living environment that protects his physical, mental and emotional safety and well-being; failing to provide him with services necessary to prevent him from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing him in emergency shelters or other emergency, temporary placements that are contrary to his individual needs and for extended periods, in violation of any reasonable professional judgment; failing to provide him with appropriate planning and services directed toward ensuring that he can leave foster care and grow up in a permanent family; failing to provide him with treatment and care consistent with the purpose of the assumption of custody by DHS; keeping him in DHS custody longer than is necessary to accomplish the purposes of taking him into DHS custody; failing to
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provide him care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline ofhis DRS caseworkers; failing to provide adequate monitoring of his current status and needs; failing to place him in the least restrictive placement according to his needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse or neglect while he was in DRS custody; failing to adequately screen foster homes prior to placing him in such homes; subjecting him to state-created dangers in placing him on unsupervised visits or trial home reunification with family members without taking reasonable steps and providing necessary supervision to ensure his safety; failing to preserve family connections and to facilitate visits with his siblings; failing to arrange adequate and basic educational opportunities; and failing to provide him with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for his essential needs and services.
212. DRS has victimized G.C. through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide required visits from her DRS caseworkers, the failure to arrange adequate and basic educational opportunities, the failure to arrange consistent and appropriate mental health services, the failure to supervise visits with relatives, and the failure to provide services necessary to facilitate her prompt and safe reunification with her biological mother or, if DRS determines that is not appropriate, the failure to seek and secure another permanent home for G.C. out of state custody through adoption. These harms and G.c. 's continued instability and
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risk of harm are a direct result of DRS's drastic placement shortage, its failure to find an appropriate placement for G.C. and its failure to provide adequate monitoring and oversight over its placements and over her care.
213. G.C. entered DRS custody in Tulsa County in November of 2003, when she was nine years old, after it was revealed that her stepfather had been sexually abusing her since the age of four and her mother had failed to protect her from the abuse. With no foster homes available, DRS fIrst placed G.C. in the overcrowded and inadequately supervised Laura Dester Emergency Shelter in Tulsa for over a month, before moving her to a foster home in Tulsa County for less than two weeks. DRS then placed G.C. in a kinship home with her grandfather in Pottawatomie County for over a year, where her step-grandmother frequently whipped her with a leather strap. DRS moved G.C. from this unsafe and abusive placement to another emergency shelter, this time in Norman, for almost two months, until she was moved to another foster home for four months.
214. In June of 2005, DRS placed G.C. on a trial home reunifIcation with her biological mother in Muskogee County, although DRS had not provided G.C.'s mother with the services necessary to enable her to care for her children. DRS retained custody ofG.C. and was required to provide her with supervision, monitoring and services to ensure her safety during the entire trial home reunifIcation, but failed to do so. During the fIve months that G.C. was on trial home reunifIcation, G.C.'s "primary" DRS caseworker did not visit her at home once, and her "secondary" DRS caseworker from Muskogee County only saw G.c. a few brief times. In reality, G.C. was living with her aunt in the same home where G.C.'s brothers were living, while her biological mother lived separately with a boyfriend who had not undergone a required background check that would have uncovered his prior history of child abuse. While living with
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her aunt, G.C. was emotionally abused and threatened with physical abuse by her aunt. Additionally, G.C. suffered an adverse reaction to being placed with her brothers, who strongly resembled her stepfather who had sexually abused her for years and whose criminal trial and conviction for that sexual abuse had just come to a close. As a result of this trauma, G.C. had to be hospitalized for more than a month, and she was diagnosed with Post Traumatic Stress Disorder and Reactive Attachment Disorder.
215. After her hospitalization, at the end of2005, DHS placed G.C. in a foster home in Rogers County where she remained for a year, and developed a relationship with her foster parents. G.C.'s "primary" DHS caseworker did not visit her in this home for four months, and her "secondary" caseworker from Rogers County only made a few brief visits. While in this placement, DHS allowed G.C. to have unsupervised visits with her biological mother and her boyfriend, who still had not undergone a required background check. DHS allowed these unsupervised visits to continue for over six months.
216. In the fall of2006, DHS performed a home study to quality G.C.'s uncle and his wife as kinship foster parents for G.C. However, the home was disqualified due to unsafe and unsanitary conditions, including trash, beer cans and dirty diapers all over the front lawn, dog feces throughout the inside of the house, and exposed wires and holes in the walls inside the house. Nevertheless, a month later, DHS deemed this same home suitable for G.c. to have unsupervised overnight visits with her uncle and his family. During the first unsupervised weekend visit, G.C. was forced to clean dog feces throughout the house, and her uncle hit her on her knee, causing a serious bruise, as a warning not to speak up about the conditions in the home. During the second unsupervised visit to her uncle's home, G.C.'s aunt brought over G.C.'s
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brothers, despite the trauma G.C. had suffered the last time she was placed with them. G.C. was told by her uncle not to tell anyone that she had seen her siblings.
217. Following the unsupervised weekend visits with her uncle and his family, G.C. reported suicidal ideations while at school and began to have flashbacks of her sexual abuse. As a result, in February of 2007, DHS placed G.C. at an inpatient facility for two months in a program that was overly restrictive and unsafe. Although G.C. was to be monitored on a 24hour basis at the facility to ensure her safety and well-being, during this time, she was sexually assaulted by a male resident. DHS failed to investigate the assault. Not surprisingly, G.C. 's behavior significantly deteriorated during her inpatient stay.
218. In April of 2007, DHS placed G.C. temporarily in the same foster home in Rogers County that she had been placed in prior to her hospitalization, but she was moved again several months later.
219. Since August of 2007, DHS has moved G.C. among five different foster homes, several of which were more than one hundred miles from Tulsa, including one overcrowded foster home with seven other children and a foster parent on dialysis. DHS has consistently failed to provide G.C. 's foster parents with necessary information on G.C. 's background, medical history and current needs. In addition, although DHS is aware that, due to G.C.'s history, she needs to be placed in a home with no other foster children, DHS continues to place her in homes with older children, accelerating the cycle of placement disruptions and transitions. With each new move, G.C. experiences increased feelings of detachment and rejection, a greater sense of instability and worsening psychological trauma. As a result, G.C. has begun self-mutilating and her behavior has deteriorated.
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220. In January of 2008, DRS moved O.C. to the same institutional facility where she had previously been sexually assaulted. G.C. remains in this overly restrictive and unsafe facility today, inadequately monitored and deteriorating in custody.
221. G.C. has received dangerously poor monitoring and oversight from DRS during her time in state custody. While in custody, O.C. has suffered both physical and sexual abuse and has been shuflled through at least fifteen different placements all over the state, without adequate stability, treatment or care from DRS. Although O.C. currently receives multiple psychotropic medications, DRS has failed to arrange consistent and appropriate mental health services for O.C. to address the emotional and psychological trauma she has suffered and continues to suffer in DRS custody. In addition, DRS has failed to provide G.C. with consistent, needed therapy to address the sexual abuse she has suffered.
222. DRS has failed to arrange adequate and basic educational opportunities for O.C. during her time in DRS custody. DRS has failed to ensure that O.C.'s educational records have followed her numerous placement moves. DRS has caused O.C. to change schools, to miss an unnecessary amount of school, and to fall behind in school, without any plan or services to give her the educational supports she needs.
223. DRS has failed to provide the services necessary to facilitate G.C.'s prompt and safe reunification with her biological mother or, if DRS determines that is not appropriate, to seek and secure another permanent home for G.c. through adoption, so she can leave DHS custody. Instead, O.c. waits indefinitely for a long term placement, at risk of being moved yet again.
224. DRS's policies and practices have caused O.C. irreparable harm and continue to subject O.C. to the imminent risk of irreparable harm. DHS has violated G.C.'s
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constitutional and statutory rights by: failing to protect her from unnecessary harm and failing to keep her reasonably safe from harm while in government custody; failing to provide her with a living environment that protects her physical, mental and emotional safety and well-being; failing to provide her with services necessary to prevent her from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing her in emergency shelters or other emergency, temporary placements that are contrary to her individual needs and for extended periods, in violation of any reasonable professional judgment; failing to provide her with appropriate planning and services directed toward ensuring that she can leave foster care and grow up in a permanent family; failing to provide her with treatment and care consistent with the purpose of the assumption of custody by DRS; keeping her in DRS custody longer than is necessary to accomplish the purposes of taking her into DRS custody; failing to provide her care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline of her DRS caseworkers; failing to provide adequate monitoring of her current status and needs; failing to place her in the least restrictive placement according to her needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse or neglect while she was in DRS custody; failing to adequately screen foster homes prior to placing her in such homes; subjecting her to state-created dangers in placing her on unsupervised visits or trial home reunification with family members without taking reasonable steps and providing necessary supervision to ensure her safety; failing to arrange adequate and basic educational opportunities; and failing to provide her with foster placements that are receiving
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adequate foster care maintenance payments so that they have the capacity to provide for her essential needs and services.
225. DHS has subjected K.T. to further harm through unsafe placements and numerous moves, the failure to provide stable and safe care from a consistent adult caregiver, the failure to provide required visits from her DHS caseworkers, the failure to arrange regular contact with her sibling, the failure to arrange special education services, the failure to arrange consistent and appropriate mental health services, the failure to supervise visits with her biological father, the failure to provide required services to enable her to live independently when she turns eighteen, and the failure to seek and secure a permanent home for K.T. out of state custody through adoption. These harms and K.T.' s continued instability and risk of harm are a direct result ofDHS's drastic placement shortage, its failure to find an appropriate and permanent placement for K.T. and its failure to provide adequate monitoring and oversight over its placements and over her care.
226. K.T. entered DHS custody in Oklahoma City in May of 1997, when she was six years old, due to physical and sexual abuse by her father and extreme neglect. With no foster homes available, DHS ftrst placed K.T. in the overcrowded and poorly supervised Pauline Mayer Emergency Shelter in Oklahoma City before moving her to an "emergency foster home" for a month. DHS then placed her in two separate kinship placements over the next year, before moving her back to the Pauline Mayer Emergency Shelter in June of 1998. DHS kept her in the shelter for six weeks, although she was only seven years old at the time. At this point, DHS had already moved K.T. through five placements in her first year in custody, and her behavior predictably became more disruptive.
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227. During this time, DRS allowed KT. dangerous unsupervised weekend visitation with her biological father who had sexually abused her. DRS placed K.T. at great risk of harm by allowing these visits. The visits fmally ceased when KT. reported that there was no food in her father's home, that her father and his girlfriend had engaged in inappropriate sexual behavior in front of her and that her father had invited her mother - who had relinquished her parental rights - to spend time with KT. during these visits.
228. Over the next eight years, DRS moved KT. through numerous foster homes and inpatient facilities, often without receiving the required visits from her DRS caseworker or appropriate monitoring over her care and her placements. KT. was diagnosed with ADHD and Reactive Attachment Disorder and was prescribed multiple psychotropic medications to control her behavior during this time; however, DRS failed to arrange consistent, needed therapy and mental health treatment for KT. DRS also failed to provide KT. specialized placements to address her developmental delays. These failures by DRS caused K.T. to further deteriorate in custody.
229. DRS then placed KT. in two separate emergency shelters over the span of two weeks in April of 2006 before placing her in an unsafe, poorly monitored and inadequately supervised group home in Lawton for over a year. This group home did not have any specialized staff or programs for KT.'s developmental delays and she received none of the attention and specialized supports that she requires.
230. In June of 2007, DRS moved KT. to another unsafe, poorly monitored and inadequately supervised group home in Tulsa. This group home is located in an old motel near Interstate 1-44, in walking distance of several seedy bars, strip clubs and truck stops. The only immediate outdoor space where the resident children can play is the cement parking lot
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outside the group home. Foster children ages five through eighteen are housed together in this home without age or developmentally appropriate programs or treatment. The home does not have any specialized staff or programs for K.T. 's developmental delays and she receives none of the attention and specialized supports she requires. Supervision in the home is so poor, and the conditions in the home so unsanitary and unsafe, that children placed in this home frequently run away from the home for their own safety. Yet K T. remains in this inappropriate and dangerous group home today, inadequately monitored and further deteriorating.
231. KT. has received dangerously poor monitoring and oversight from DRS during her time in state custody. After spending the past ten years in DRS custody, KT. has been shuffled through more than twenty placements many ofthem unsafe, inappropriate and inadequately supervised - without adequate stability, treatment or care from DRS. DRS has separated KT. from her brother, who is also in DRS custody, and has failed to arrange for K.T. to have regular visits with him in order to maintain critical family relationships. Currently, although KT. still receives multiple psychotropic medications, DRS has failed to arrange consistent and appropriate mental health services for K.T. to address the emotional and psychological trauma she has suffered and continues to suffer in DRS custody.
232. Although KT. is now sixteen years old and eligible for independent living services, DRS has failed to provide her with required services to prepare her to live on her own when she turns 18 and is discharged from DRS custody, a failure made even more dangerous by KT. 's developmental delays.
233. DRS has also failed to arrange special education services for KT. during her time in DRS custody. DHS has failed to ensure that KT.'s educational records follow her numerous placement moves. DHS has caused K.T. to change schools numerous times, to miss
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an unnecessary amount of school, and to fall behind in school, without any plan or services to give her the special educational supports she needs.
234. DRS failed to provide the services necessary to facilitate KT.'s prompt and safe reunification with her biological parents. Although the parental rights ofKT.'s parents were terminated by 2000, DRS has failed to seek and secure another permanent home for K.T. through adoption, so she can leave DRS custody. DRS's permanency goal for KT. is long term foster care, and KT. waits indefmitely for a long term placement, at risk of being moved yet again.
235. DRS's policies and practices have caused K.T. irreparable harm and continue to subject KT. to the imminent risk of irreparable harm. DRS has violated KT.'s constitutional and statutory rights by: failing to protect her from unnecessary harm and failing to keep her reasonably safe from harm while in government custody; failing to provide her with a living environment that protects her physical, mental and emotional safety and well-being; failing to provide her with services necessary to prevent her from deteriorating or being harmed physically, psychologically or emotionally while in government custody, including the right to safe and secure foster placements, appropriate monitoring and supervision; placing her in emergency shelters or other emergency, temporary placements that are contrary to her individual needs and for extended periods, in violation of any reasonable professional judgment; failing to provide her with appropriate planning and services directed toward ensuring that she can leave foster care and grow up in a permanent family; failing to provide her with a plan or services to enable her to live independently when she turns eighteen; failing to provide her with treatment and care consistent with the purpose of the assumption of custody by DRS; keeping her in DRS custody longer than is necessary to accomplish the purposes of taking her into DRS custody;
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failing to provide her care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; failing to provide adequate instruction, supervision, control and discipline of her DRS caseworkers; failing to provide adequate monitoring of her current status and needs; failing to place her in the least restrictive placement according to her needs; failing to develop and implement timely written case plans that include mandated elements; failing to provide appropriate, adequate and timely investigations into suspected abuse or neglect while she was in DRS custody; failing to adequately screen foster homes prior to placing her in such homes; subjecting her to state-created dangers in placing her on unsupervised visits or trial home reunification with family members without taking reasonable steps and providing necessary supervision to ensure her safety; failing to preserve family connections and to facilitate visits with her sibling; failing to arrange adequate and basic educational opportunities; and failing to provide her with foster placements that are receiving adequate foster care maintenance payments so that they have the capacity to provide for her essential needs and services. VIll. Causes of Action
First Cause of Action (Substantive Due Process Under the Fourteenth Amendment to the United States
Constitution) 236. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 237. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from harm when it takes that child into its foster care custody.
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238. The foregoing policies and practices of Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, constitute a failure to meet the affirmative duty to protect from harm and to keep reasonably free from harm all Named Plaintiffs and Plaintiff Children, which is a substantial factor leading to, and proximate cause of, the violation ofthe constitutionally protected liberty and privacy interests of all Named Plaintiffs and Plaintiff Children.
239. The foregoing policies and practices ofDefendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, constitute a policy, pattern, custom and/or practice that shocks the conscience, is outside the exercise of any professional judgment and amounts to deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and Plaintiff Children. As a result, all Named Plaintiffs and Plaintiff Children have been harmed and are at continuing and imminent risk of harm, and have been deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.
240. These substantive due process rights include, but are not limited to: the right to protection from unnecessary harm and to be reasonably safe from harm while in government custody; the right to a living environment that protects Plaintiff Children's physical, mental and emotional safety and well-being; the right to services necessary to prevent Plaintiff Children from deteriorating or being harmed physically, psychologically or otherwise while in government custody, including but not limited to the right to safe and secure foster care placements, appropriate monitoring and supervision, appropriate planning and services directed toward ensuring that Plaintiff Children can leave foster care and grow up in a permanent family; the right to treatment and care consistent with the purpose of the assumption of custody by DHS;
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the right not to be maintained in custody longer than is necessary to accomplish the purposes of taking Plaintiff Children into custody; the right to receive care, treatment and services, determined and provided through the exercise of accepted, reasonable professional judgment; the right to be placed in the least restrictive placement according to Plaintiff Children's needs; the right to appropriate, adequate and timely investigations of allegations of abuse or neglect; the right to adequate instruction, supervision, control and discipline of caseworkers; the right not to be placed in overcrowded or dangerous foster homes or facilities; the right to adequate screening of foster care homes and other placement providers prior to placement; the right to adequate monitoring of the current status and needs of Plaintiff Children; and the right not to be subjected to state-created dangers in the placement of Plaintiff Children still in DHS custody on visits or trial home reunification placements with their biological parents or family members.
Second Cause of Action (First, Ninth, and Fourteenth Amendments to the United States Constitution)
241. Each and every allegation of the Complaint is incorporated as if fully set forth herein.
242. The foregoing policies and practices of the Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, constitute a failure to exercise an affirmative duty to protect the welfare of all Named Plaintiffs and PlaintiffChildren, which failure is a substantial factor leading to, and a proximate cause of, violation ofthe constitutionally protected liberty interests, privacy interests and associational rights of all ofthe Named Plaintiffs and Plaintiff Children.
243. The foregoing policies and practices of the Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, amount to a policy,
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pattern, custom and/or practice that is outside the exercise of any professional judgment and amounts to deliberate indifference to Plaintiffs' constitutional rights. As a result, Named .Plaintiffs and Plaintiff Children are being deprived of their liberty interest, privacy interests and associational rights conferred on them by the First, Ninth, and Fourteenth Amendment to the United States Constitution not to be deprived of a child-parent or a child-sibling family relationship.
Third Cause of Action (The Federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 621 et seq.,
670 et seq.) 244. Each and every allegation ofthe Complaint is incorporated herein as if fully set forth. 245. Under the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997,42 U.S.C. §§ 62l-629(i), 670-679b (collectively, the "Adoption Assistance Act"), states receive certain federal reimbursements so long as they enter into a plan approved by the federal Department of Health and Human Services and comply with its terms. Oklahoma receives federal funding under the Adoption Assistance Act and has submitted and entered into such a plan, which is a legal contract between the federal government and the State, thereby agreeing to provide child welfare services in accordance with the Adoption Assistance Act. 246. The foregoing policies and practices by Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, constitute a policy, pattern, custom and/or practice of depriving all Named Plaintiffs and Plaintiff Children of rights conferred on them by the Adoption Assistance Act and the regulations promUlgated thereunder, 45 C.F.R. §§ 1355-57. These rights include but are not limited to: the right to timely written
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case plans containing mandated elements, and to a case review system to ensure the implementation of these plans; the right to have a petition to terminate parental rights filed, or have a compelling reason documented why such a petition has not been filed, in accordance with specified, statutory standards and time frames; the right of Plaintiff Children whose permanency goal is adoption to planning and services to obtain a permanent placement, including documentation ofthe steps taken to secure permanency; the right to services that protect Plaintiff Children's safety and health; the right to have health and educational records reviewed, updated and supplied to foster parents or foster care providers with whom the Plaintiff Child is placed at the time of placement; and the right of Plaintiff Children to live in foster placements that have the capacity to provide for their essential needs and services by receiving adequate foster care maintenance payments that cover the actual cost of (and the cost of providing) the Plaintiff Child's food, clothing, shelter, daily supervision, school supplies, reasonable travel to visitation with family and other expenses. 42 U.S.c. §§ 622(b)(8)(A)(ii)-(iii), 622(b)(15), 629a(a)(l)(A)(i)-(ii), 629a(a)(7)-(8), 671(a)(l), 671(a)(II), 671(a)(16), 671(a)(22), 672(a)-(c), 675(1), 675(4)(A), 675(5)(A), 675(5)(D)-(E); 45 C.F.R. §§ 1355.20, 1355.25, 1356.21(f)-(g), 1356.21 (i), 1356.21(m), 1357.10(c)(4)-(6).
Fourth Cause of Action (Procedural Due Process Under the Fifth and Fourteenth Amendments to the United States
Constitution) 247. Each and every allegation of the Complaint is incorporated as if fully set forth herein. 248. The foregoing policies and practices of Defendants, who directly and indirectly control and are responsible for the polices and practices of DHS, constitute a failure to exercise an affirmative duty to protect the welfare of all Named Plaintiffs and Plaintiff Children,
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which is a substantial factor leading to, and a proximate cause of, the violation of the constitutionally protected liberty and privacy interests of all of the Named Plaintiffs and Plaintiff Children.
249. The foregoing policies and practices of the Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, constitute a policy, pattern, custom and/or practice of failing to exercise any reasonable professional judgment and of deliberate indifference to the constitutionally protected liberty and property interests of Named Plaintiffs and PlaintiffChildren. As a result, Named Plaintiffs and PlaintiffChildren have been and are being harmed and deprived ofboth federal and state-created liberty or property rights without due process of law.
250. The foregoing policies and practices of the Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, have resulted and are continuing to result in deprivations offederal-Iaw entitlements arising from the Adoption Assistance Act and the accompanying regulations promulgated by the United States Department of Health and Human Services, to which PlaintiffChildren have a constitutionally protected interest.
251. The foregoing policies and practices of the Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, have resulted, and are continuing to result, in deprivations of the following state-law entitlements to which each Plaintiff Child has a constitutionally protected interest:
a. The entitlements arising from § 7003-5.6 of the Oklahoma Statutes, requiring DHS, inter alia, to prepare a written report every six months prior to each permanency hearing on behalf of a child containing the status of the child and the child's plan for permanency;
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b. The entitlements arising from § 7006-1.6 ofthe Oklahoma Statutes, requiring DHS, inter alia, to identify those adjudicated deprived children who have been in DHS custody for fifteen of the most recent twenty-two months and provide a list to the district attorney of those cases for which termination of parental rights petitions should be filed;

c. The entitlements arising from § 404.1 of the Oklahoma Statutes, requiring DHS, inter alia, to complete a criminal history records search for any person making application to establish or operate a child care facility prior to the issuance of a license to operate such facility and for any adult who subsequently moves into the private residence and, prior to contracting with a foster family home for placement of any child in the custody of DHS, requiring DHS to complete a foster parent eligibility assessment and a national criminal history records search for any adult residing in the foster family home and for any adult who subsequently moves into the residence;

d. The entitlements arising from § 7209 of the Oklahoma Statutes, requiring DHS, inter alia, not to place a child in an out-of-home placement prior to the completion of a foster parent eligibility assessment, a national criminal history records search and a check of any child abuse registry maintained by a state in which the prospective foster parent or any adult living in the home ofthe prospective foster parent has resided in the preceding five years;

e. The entitlements arising from § 7003-8.1 ofthe Oklahoma Statutes, requiring DHS, inter alia, not to approve placement of a child with a prospective foster parent if the prospective foster parent or any other person residing in the home ofthe prospective foster parent has been convicted of any ofthe following felony offenses: (a) within the five-year period preceding the application date, physical assault, battery or a drug-related offense; (b) child abuse or neglect; (c) domestic violence; (d) a crime against a child; or (e) a crime involving violence, including, but not limited to, rape, sexual assault or homicide;

f.

The entitlements arising from §§ 7004-1.1 and 7004-3.1 ofthe

Oklahoma Statutes, requiring DHS, inter alia, to assure that

children in DHS custody receive educational instruction through

enrollment in a public school or an alternative program consistent

with the needs and abilities ofthe child; and

g. The entitlements arising from § 7003-5.3 ofthe Oklahoma Statutes, requiring DHS, inter alia, to file an individual treatment

83

and service plan with the court within thirty (30) days after a child has been adjudicated deprived.
Fifth Cause of Action (Breach of Federal Contractual Obligations to Third Party Beneficiaries)
252. Each and every allegation of the Complaint is incorporated as if fully set forth herein.
253. Under Titles IV-B and IV-E of the Social Security Act, states receive certain federal monies so long as they enter into plans approved by HHS and comply with their terms. Oklahoma receives federal funding under Titles IV-B and IV-E of the Social Security Act and has submitted such State Plans to the federal government, which are legal contracts between the federal government and the State, and such plans have been approved. In these State Plan contracts, the State agrees to provide child welfare, foster care, and adoption services to Plaintiffs in accordance with specific statutes, regulations, and policies and all applicable federal regulations and other official issuances of the United States Department ofHealth and Human Services.
254. The foregoing policies and practices of Defendants, who directly and indirectly control and are responsible for the polices and practices ofDHS, have breached and continue to breach their obligations under Oklahoma's State Plan contracts, and all Plaintiffs, as the intended direct third-party beneficiaries to these State Plan contracts, are (i) being denied their rights under law to the services and benefits that the State of Oklahoma is obligated to provide to them under such contracts, and (ii) being harmed thereby.
84

IX. Prayer for Relief
255. WHEREFORE, the Plaintiff Children respectfully request that this
Honorable Court:
a. Assert jurisdiction over this action;
b. Order that Plaintiff Children may maintain this action as a class action pursuant to Rule 23(b)(2) ofthe Federal Rules ofCivil Procedure;
c. Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal Rules ofCivil Procedure:
1. Defendants' violation of Plaintiff Children's rights under the Substantive Due Process Clause of the Fourteenth Amendment to the United States Constitution;
n. Defendants' violation of Plaintiff Children's rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution;
iii. Defendants' violation ofPlaintiff Children's rights under the Adoption Assistance and Child Welfare Act of 1980,42 U.S.C. §§ 621 et seq., 670 et seq.;
iv. Defendants' violation of Plaintiff Children's right to procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution; and
v. Defendants' breach of their contractual obligations to Plaintiff Children under the State of Oklahoma's Title IV-E and Title IV-B state plans;
d. Permanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights;
e. .Order appropriate remedial relief tailored to the evidence proven to the Court in order to ensure Defendants' future compliance with their legal obligations to Plaintiff Children;
f. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys' fees, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920, and Federal Rules of Civil Procedure 23(e) and (h); and
85

g. Grant such other and further equitable relief as the Court deems just, necessruy and proper to protect Plaintiff Children from further harm by Defendants.
DATED: February 13,2008
. __ Respectfully Submb,~~.:_~~ •.rL.
\2r.3, d ~ p ~~ -.//~f~\=.J>t~t.-{~Pc;""'\..ll--
R. OMASSEYMotR (Bar No. 8099) SCOTT A. GRAHAM (BarNo. 19817) SEYMOUR & GRAHAM, LLP 100 W. Fifth Street, Suite 550 Tulsa, Oklahoma 74103-4288 Telephone: 918-583-5791 Facsimile: 918-583-9251 Email: Rtseymourl@aol.com
ZNA1MlL,~
FREDERIC DORWART (Bar No. 2436) FREDERIC DORWART, LAWYERS Old City Hall 124 East Fourth Street Tulsa, Oklahoma 74103-5010 Telephone: 918-583-9922 Facsimile: 918-583-8251 Email: FDorwart@FDLAW.com
/l ~#'..,;-t L
G7MiCHAEL LEWIS (Bar No. 5404) DOERNER, SAUNDERS, DANIEL & ANDERSON, LLP 320 South Boston Avenue, Suite 500 Tulsa, Oklahoma 74103-3725 Telephone: 918-591-5314 Facsimile: (918) 925-5314 Email: mlewis@dsda.com
86

BRU DAY(BarNo.22r3~-. .;?~~

JOE E. EDWARDS (Bar No. 2640)

DAY EDWARDS, PROPESTER & CHRlSTENSEN, PC

Suite 2900, Oklahoma Tower

210 Park Avenue

Oklahoma City, OK 73102

Telephone: (405) 239-2121

Facsimile: (405) 236-1012

Email: bruceday@dayedwards.com

edwards@dayedwards.com

~Pv11~-1A1~~ MARCIA ROBINSON LOWR~ro hac vice appif{;';ion

pending)

IRA P. LUSTBADER (pro hac vice application pending)

YASMIN GREWAL-KOK (pro hac vice application

pending)

JEREMIAH FREI-PEARSON (pro hac vice application

pending)

CHILDREN'S RIGHTS

330 Seventh Avenue, Fourth Floor

New York, New York 10001

Telephone: (212) 683-2210

Facsimile: (212) 683-4015

Email: mlowry@childrensrights.org
tt.~

J~

PHIL A. GERACI (pro hac v' application pending) MARK A. BECKMAN (pro hac vice application pending) R. NADINE FONTAINE (pro hac vice application pending) CARLY HENEK (pro hac vice application pending) ANDREW BAUER (pro hac vice application pending) KAYE SCHOLER LLP 425 Park Avenue New York, NY 10022-3598 Telephone: (212) 836-8000 Facsimile: (212) 836-7223 Email: pageraci@kayescholer.com

87

 
 USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 1 of 110
CLASS,CLOSED,DISCREF
U.S. District Court U.S. District Court for the Northern District of Oklahoma (Tulsa)
CIVIL DOCKET FOR CASE #: 4:08−cv−00074−GKF−FHM

D.G. et al v. Henry et al Assigned to: Chief Judge Gregory K Frizzell Referred to: Magistrate Judge Frank H McCarthy Case in other court: 10th Circuit, 09−05093 (#281) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/13/2008 Date Terminated: 02/29/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

DG by Next Friend G. Gail Stricklin − G Gail Stricklin

represented by Andrew Belkin Bauer Kaye Scholer LLP 425 PARK AVE NEW YORK, NY 10022−3598 212−836−8000 Fax: 212−836−6563 Email: abauer@kayescholer.com TERMINATED: 04/23/2010 LEAD ATTORNEY

Angela Rosalee Vicari Kaye Scholer LLP 425 PARK AVE NEW YORK, NY 10022−3598 212−836−7408 Fax: 212−836−6495 Email: avicari@kayescholer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce W Day Day Edwards Propester & Christensen (Oklahoma City) 210 W PARK AVE STE 2900 OKLAHOMA CITY, OK 73102−5605 405−239−2121 Fax: 236−1012 TERMINATED: 01/03/2011 LEAD ATTORNEY

Carly Henek Kaye Scholer LLP 425 PARK AVE NEW YORK, NY 10022−3598 212−836−7584 Fax: 212−836−6593 Email: chenek@kayescholer.com TERMINATED: 04/23/2010 LEAD ATTORNEY

Frederic Dorwart Frederic Dorwart Lawyers 124 E 4TH ST TULSA, OK 74103−5010 918−583−9922 Fax: 918−583−8251 Email: fdorwart@fdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

G Michael Lewis

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 2 of 110
Doerner Saunders Daniel & Anderson LLP (Tulsa) TWO W SECOND ST STE 700 TULSA, OK 74103−3117 918−591−5314 Fax: 918−925−5314 Email: mlewis@dsda.com TERMINATED: 06/25/2008 LEAD ATTORNEY
Gena E Wiltsek Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: gwiltsek@childrensrights.org TERMINATED: 04/07/2011 LEAD ATTORNEY
Ira P Lustbader Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: ilustbader@childrensrights.org TERMINATED: 09/11/2014 LEAD ATTORNEY
Jeremiah Lee Frei−Pearson Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: jfrei−pearson@childrensrights.org TERMINATED: 04/07/2011 LEAD ATTORNEY
Joe Earl Edwards Crowe & Dunlevy (OKC) 324 N ROBINSON AVE STE 100 OKLAHOMA CITY, OK 73102 405−239−5414 Fax: 405−239−6651 Email: joe.edwards@crowedunlevy.com TERMINATED: 01/03/2011 LEAD ATTORNEY
John S Cahalan address unknown LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry A Better Childhood, Inc. 1095 HARDSCRABBLE RD CHAPPAQUA, NY 10514 514−660−3763 Fax: 914−238−0365 Email: mlowry@abetterchildhood.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 3 of 110
Mark A Beckman Kaye Scholer LLP 425 PARK AVE NEW YORK, NY 10022−3598 212−836−7805 Fax: 212−836−6522 Email: mbeckman@kayescholer.com TERMINATED: 04/10/2009 LEAD ATTORNEY
Paul DeMuro Frederic Dorwart Lawyers 124 E 4TH ST TULSA, OK 74103−5010 918−583−9922 Fax: 918−583−8251 Email: pdemuro@fdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci Kaye Scholer LLP 425 PARK AVE NEW YORK, NY 10022−3598 212−836−8000 Fax: 212−836−7223 Email: pageraci@kayescholer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour Seymour Law Firm 1811 S BALTIMORE AVE TULSA, OK 74119 918−583−5791 Fax: 918−583−9251 Email: Rtseymour1@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine Kaye Scholer LLP 425 PARK AVE NEW YORK, NY 10022−3598 212−836−8000 Fax: 212−836−7155 Email: nfontaine@kayescholer.com TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser A Better Childhood, Inc. 1095 HARDSCRABBLE RD CHAPPAQUA, NY 10514 541−660−3763 Fax: 914−238−0365 Email: srglasser@abetterchildhood.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham Federal Public Defender's Office (Tulsa) 1 W 3RD ST STE 1225 TULSA, OK 74103 918−581−7656

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 4 of 110

Fax: 918−581−7630 Email: scott_graham@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Kapell Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: wkapell@childrensrights.org TERMINATED: 09/11/2014 LEAD ATTORNEY

Yasmin Grewal−Kok Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: ygrewal−kok@childrensrights.org TERMINATED: 08/18/2011 LEAD ATTORNEY

Susan Lambiase Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 TERMINATED: 09/15/2011

Plaintiff
CS by Next Friend Barbara Sears − Barbara Sears

represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce W Day (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 5 of 110
Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Joe Earl Edwards (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY
John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 6 of 110

William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY

Yasmin Grewal−Kok (See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY

Susan Lambiase (See above for address) TERMINATED: 09/15/2011

Plaintiff
JB a minor, by Next Friend Buddy Faye Foster − Buddy Faye Foster

represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce W Day (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY

Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY

Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY

Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY

Joe Earl Edwards (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 7 of 110
John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY
Miriam F Ingber Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: mingber@childrensrights.org TERMINATED: 09/11/2014 LEAD ATTORNEY
Patrick S Almonrode Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: palmonrode@childrensrights.org TERMINATED: 09/11/2014 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 8 of 110

Plaintiff
AP by Next Friend Leslie A. Ellis Kissinger −

William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Yasmin Grewal−Kok (See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY
Jason Michael Moff Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: jmoff@childrensrights.org TERMINATED: 12/14/2011
Jodi Kim Miller Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−6893−2210 Fax: 212−683−4015 Email: jmiller@childrensrights.org TERMINATED: 09/11/2014
Laurence Drew Borten Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: lborten@childrensrights.org TERMINATED: 09/11/2014
Philip Gellert Barber Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: pbarber@childrensrights.org TERMINATED: 09/11/2014
Sarah Teresa Russo Children's Rights 330 SEVENTH AVE 4TH FLR NEW YORK, NY 10001 212−683−2210 Fax: 212−683−4015 Email: srusso@childrensrights.org TERMINATED: 09/11/2014
Susan Lambiase (See above for address) TERMINATED: 09/15/2011
represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 9 of 110

Leslie A. Ellis Kissinger

LEAD ATTORNEY

Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce W Day (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY

Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY

Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY

Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY

Joe Earl Edwards (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY

Miriam F Ingber (See above for address) TERMINATED: 09/11/2014

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 10 of 110
LEAD ATTORNEY
Patrick S Almonrode (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Yasmin Grewal−Kok (See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY
Jason Michael Moff (See above for address) TERMINATED: 12/14/2011
Jodi Kim Miller (See above for address) TERMINATED: 09/11/2014
Laurence Drew Borten (See above for address) TERMINATED: 09/11/2014
Philip Gellert Barber (See above for address) TERMINATED: 09/11/2014
Sarah Teresa Russo (See above for address)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 11 of 110

TERMINATED: 09/11/2014

Susan Lambiase (See above for address) TERMINATED: 09/15/2011

Plaintiff
JA by Next Friend Buddy Faye Foster

represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce W Day (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY

Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY

Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY

Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY

Joe Earl Edwards (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 12 of 110
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY
Miriam F Ingber (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Patrick S Almonrode (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Yasmin Grewal−Kok (See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY
Jason Michael Moff (See above for address) TERMINATED: 12/14/2011
Jodi Kim Miller (See above for address) TERMINATED: 09/11/2014

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 13 of 110

Plaintiff
JP by Next Friend G. Gail Stricklin

Laurence Drew Borten (See above for address) TERMINATED: 09/11/2014
Philip Gellert Barber (See above for address) TERMINATED: 09/11/2014
Sarah Teresa Russo (See above for address) TERMINATED: 09/11/2014
Susan Lambiase (See above for address) TERMINATED: 09/15/2011
represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce W Day (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY
Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY
Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Joe Earl Edwards

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 14 of 110
(See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY
John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY
Miriam F Ingber (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Patrick S Almonrode (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Yasmin Grewal−Kok

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 15 of 110

(See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY

Jason Michael Moff (See above for address) TERMINATED: 12/14/2011

Jodi Kim Miller (See above for address) TERMINATED: 09/11/2014

Laurence Drew Borten (See above for address) TERMINATED: 09/11/2014

Philip Gellert Barber (See above for address) TERMINATED: 09/11/2014

Sarah Teresa Russo (See above for address) TERMINATED: 09/11/2014

Susan Lambiase (See above for address) TERMINATED: 09/15/2011

Plaintiff
RJ by Next Friend Paul Naylor − Paul Naylor

represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce W Day (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY

Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 16 of 110
Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Joe Earl Edwards (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY
John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY
Miriam F Ingber (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Patrick S Almonrode (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 17 of 110

Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY

Yasmin Grewal−Kok (See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY

Jason Michael Moff (See above for address) TERMINATED: 12/14/2011

Jodi Kim Miller (See above for address) TERMINATED: 09/11/2014

Laurence Drew Borten (See above for address) TERMINATED: 09/11/2014

Philip Gellert Barber (See above for address) TERMINATED: 09/11/2014

Sarah Teresa Russo (See above for address) TERMINATED: 09/11/2014

Susan Lambiase (See above for address) TERMINATED: 09/15/2011

Plaintiff
GC by Next Friend Anne Sublett − Anne Sublett

represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce W Day (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY

Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY

Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 18 of 110
G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY
Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Joe Earl Edwards (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY
John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY
Miriam F Ingber (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Patrick S Almonrode (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 19 of 110

Plaintiff
KT by Next Friend Barbara Sears, for themselves and those similarly situated

Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Yasmin Grewal−Kok (See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY
Jason Michael Moff (See above for address) TERMINATED: 12/14/2011
Jodi Kim Miller (See above for address) TERMINATED: 09/11/2014
Laurence Drew Borten (See above for address) TERMINATED: 09/11/2014
Philip Gellert Barber (See above for address) TERMINATED: 09/11/2014
Sarah Teresa Russo (See above for address) TERMINATED: 09/11/2014
Susan Lambiase (See above for address) TERMINATED: 09/15/2011
represented by Andrew Belkin Bauer (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Angela Rosalee Vicari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce W Day (See above for address) TERMINATED: 01/03/2011

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 20 of 110
LEAD ATTORNEY
Carly Henek (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Frederic Dorwart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
G Michael Lewis (See above for address) TERMINATED: 06/25/2008 LEAD ATTORNEY
Gena E Wiltsek (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Ira P Lustbader (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Jeremiah Lee Frei−Pearson (See above for address) TERMINATED: 04/07/2011 LEAD ATTORNEY
Joe Earl Edwards (See above for address) TERMINATED: 01/03/2011 LEAD ATTORNEY
John S Cahalan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Beckman (See above for address) TERMINATED: 04/10/2009 LEAD ATTORNEY
Miriam F Ingber (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Patrick S Almonrode (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Paul DeMuro (See above for address) LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 21 of 110
ATTORNEY TO BE NOTICED
Phillip A Geraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Thomas Seymour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose Nadine Fontaine (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY
Sara Robinson−Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/11/2014 LEAD ATTORNEY
Yasmin Grewal−Kok (See above for address) TERMINATED: 08/18/2011 LEAD ATTORNEY
Jason Michael Moff (See above for address) TERMINATED: 12/14/2011
Jodi Kim Miller (See above for address) TERMINATED: 09/11/2014
Laurence Drew Borten (See above for address) TERMINATED: 09/11/2014
Philip Gellert Barber (See above for address) TERMINATED: 09/11/2014
Sarah Teresa Russo (See above for address) TERMINATED: 09/11/2014
Susan Lambiase (See above for address) TERMINATED: 09/15/2011
V.
Defendant

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 22 of 110

C Brad Henry in his official capacity as Governor of the State of Oklahoma TERMINATED: 12/11/2008

represented by D Kent Meyers Crowe & Dunlevy (OKC) 20 N BROADWAY STE 1800 OKLAHOMA CITY, OK 73102−8273 405−235−7729 Fax: 405−272−5245 Email: kent.meyers@crowedunlevy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page Barber & Bartz 525 S MAIN ST STE 800 TULSA, OK 74103 9185997755 Fax: 9185997756 Email: dpage@barberbartz.com TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham Riggs Abney Neal Turpen Orbison & Lewis (Tulsa) 502 W 6TH ST TULSA, OK 74119−1010 918−587−3161 Fax: 918−587−9708 Email: don_bingham@riggsabney.com TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone De Simone Law PLLC PO BOX 330155 TULSA, OK 74133 918−986−1776 Email: dds@dmdesimonelaw.com TERMINATED: 07/13/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve Crowe & Dunlevy (OKC) 324 N ROBINSON AVE STE 100 OKLAHOMA CITY, OK 73102 405−239−6608 Fax: 405−272−5247 Email: elizabeth.labauve@crowedunlevy.com TERMINATED: 09/23/2014 LEAD ATTORNEY

John Patrick Mensching , Jr Doerner Saunders Daniel & Anderson LLP (Tulsa) TWO W SECOND ST STE 700 TULSA, OK 74103−3117 918−591−5240 Fax: 918−925−5240 Email: pmensching@dsda.com TERMINATED: 06/14/2018 LEAD ATTORNEY

Robert Allen Nance Riggs Abney Neal Turpen Orbison & Lewis (OKC) 528 NW 12TH

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 23 of 110

OKLAHOMA CITY, OK 73103 405−843−9909 Fax: 405−842−2913 Email: rnance@riggsabney.com TERMINATED: 06/15/2018 LEAD ATTORNEY

Scott David Boughton Office of the Attorney General (OKC−313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405−521−4274 Fax: 405−521−4518 Email: fc_docket@oag.state.ok.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie L Theban Riggs Abney Neal Turpen Orbison & Lewis (Tulsa) 502 W 6TH ST TULSA, OK 74119−1010 918−587−3161 Fax: 918−587−9708 Email: stheban@riggsabney.com TERMINATED: 06/14/2018 LEAD ATTORNEY

Tricia Louise Everest Office of the Attorney General (OKC−313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405−521−4274 Fax: 405−521−4518 Email: tricia.everest@oag.ok.gov TERMINATED: 11/09/2009 LEAD ATTORNEY

Melvin Curtis Hall Riggs Abney Neal Turpen Orbison & Lewis (OKC) 528 NW 12TH OKLAHOMA CITY, OK 73103 405−843−9909 Fax: 405−842−2913 Email: mhall@riggsabney.com TERMINATED: 06/15/2018

Defendant
Richard L DeVaughn in his official capacity as Chairman of the Oklahoma Commission for Human Services

represented by Catherine Ann O'Leary Department of Human Services (Legal Services Tulsa) PO BOX 35900 TULSA, OK 74153−0900 918−794−7565 Fax: 918−794−7584 Email: catherine.oleary@okdhs.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

D Kent Meyers (See above for address)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 24 of 110
LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY
Dorothy Sharon Gentry Riggs Abney Neal Turpen Orbison & Lewis (OKC) 5801 BROADWAY EXTENSION STE 101 OKLAHOMA CITY, OK 73118 405−843−9909 Fax: 405−842−2913 Email: sgentry@riggsabney.com TERMINATED: 06/18/2018 LEAD ATTORNEY
Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY
Holly M Nigh Barkett Law Firm PLLC 2021 SOUTH LEWIS AVE STE 630 TULSA, OK 74104 918−582−6900 Fax: 918−582−6907 Email: hnigh@barkettlaw.net LEAD ATTORNEY
John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Joseph W Strealy Department of Human Services Legal Services (OKC) General Counsel PO BOX 25352 OKLAHOMA CITY, OK 73125−0352 405−521−3638 Fax: 405−521−6816 Email: joseph.strealy@okdhs.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristopher Edward Koepsel Riggs Abney Neal Turpen Orbison & Lewis (Tulsa) 502 W 6TH ST

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 25 of 110
TULSA, OK 74119−1010 918−587−3161 Fax: 918−587−9708 Email: kkoepsel@riggsabney.com TERMINATED: 06/18/2018 LEAD ATTORNEY
Richard Weldon Freeman , Jr Department of Human Services Legal Services (OKC) General Counsel PO BOX 25352 OKLAHOMA CITY, OK 73125−0352 405−521−3638 Fax: 405−521−6816 Email: Richard.Freeman@okdhs.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Garren Riggs Abney Neal Turpen Orbison & Lewis (Tulsa−502) 502 W 6TH ST TULSA, OK 74119−1010 918−587−3161 Fax: 918−587−9708 Email: rgarren@riggsabney.com TERMINATED: 09/12/2016 LEAD ATTORNEY
Richard Alan Resetaritz Department of Human Services Legal Services (OKC) General Counsel PO BOX 25352 OKLAHOMA CITY, OK 73125−0352 405−521−3638 Fax: 405−521−6816 Email: richard.resetaritz@okdhs.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY
Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Stephen Louis Cortes Riggs Abney Neal Turpen Orbison & Lewis (OKC) 528 NW 12TH OKLAHOMA CITY, OK 73103 405−843−9909 Fax: 405−842−2913 Email: scortes@riggsabney.com TERMINATED: 03/23/2010 LEAD ATTORNEY
Thomas Martin Askew Riggs Abney Neal Turpen Orbison &

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 26 of 110

Lewis (Tulsa) 502 W 6TH ST TULSA, OK 74119−1010 918−587−3161 Fax: 918−587−9708 Email: taskew@riggsabney.com TERMINATED: 06/08/2018 LEAD ATTORNEY

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Robert P Skeith NGL Energy Partners, LP 6120 S YALE STE 805 TULSA, OK 74136−4233 918−582−7100 Fax: 918−582−7166 Email: rskeith@wilkinmcmurray.com TERMINATED: 05/14/2009

Defendant
Ronald L Mercer in his official capacity as Vice−Chairman of the Oklahoma Commission for Human Services TERMINATED: 06/09/2011

represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY

Holly M Nigh (See above for address) LEAD ATTORNEY

John Patrick Mensching , Jr (See above for address)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 27 of 110

TERMINATED: 06/14/2018 LEAD ATTORNEY

Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY

Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY

Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Robert P Skeith (See above for address) TERMINATED: 05/14/2009

Defendant
Wayne Cunningham in his official capacity as member of the Oklahoma Commission for Human Services TERMINATED: 03/11/2008

represented by D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Phillip Page

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 28 of 110

(See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY

John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Defendant
Jay Dee Chase in his official capacity as member of the Oklahoma Commission for Human Services

represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 29 of 110
Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY
Holly M Nigh (See above for address) LEAD ATTORNEY
John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY
Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY
Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY
Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 30 of 110

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Robert P Skeith (See above for address) TERMINATED: 05/14/2009

Defendant
Patrice Dills Douglas in her official capacity as member of the Oklahoma Commission for Human Services TERMINATED: 03/29/2010

represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY

Holly M Nigh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 31 of 110

Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY

Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Robert P Skeith (See above for address) TERMINATED: 05/14/2009

Defendant
Michael L Peck in his official capacity as member of the Oklahoma Commission for Human Services

represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 32 of 110
Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY
Holly M Nigh (See above for address) LEAD ATTORNEY
John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY
Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY
Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY
Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 33 of 110

Robert P Skeith (See above for address) TERMINATED: 05/14/2009

Defendant
Garoldine Webb in her official capacity as member of the Oklahoma Commission for Human Services TERMINATED: 06/09/2011

represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY

Holly M Nigh (See above for address) LEAD ATTORNEY

John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 34 of 110

Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY

Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY

Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Robert P Skeith (See above for address) TERMINATED: 05/14/2009

Defendant
Aneta F Wilkinson in her official capacity as member of the Oklahoma Commission for Human Services

represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 35 of 110
Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY
Holly M Nigh (See above for address) LEAD ATTORNEY
John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY
Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY
Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY
Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 36 of 110

Defendant
George E Young, Sr Rev., in his official capacity as member of the Oklahoma Commission for Human Services TERMINATED: 11/18/2011

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018
Robert P Skeith (See above for address) TERMINATED: 05/14/2009
represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY
Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY
Holly M Nigh (See above for address) LEAD ATTORNEY
John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 37 of 110

Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY

Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY

Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Robert P Skeith (See above for address) TERMINATED: 05/14/2009

Defendant
Howard H Hendrick in his official capacity as Director of the Department of Human Services

represented by Catherine Ann O'Leary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 38 of 110
Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY
Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY
Holly M Nigh (See above for address) LEAD ATTORNEY
John Patrick Mensching , Jr (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Joseph W Strealy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Richard Weldon Freeman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY
Richard Alan Resetaritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY
Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Stephen Louis Cortes (See above for address) TERMINATED: 03/23/2010 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 39 of 110

Thomas Martin Askew (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Robert P Skeith (See above for address) TERMINATED: 05/14/2009

Defendant
Steven Dow in his official capacity only

represented by D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY

Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 40 of 110

Defendant Linda English Weeks
Defendant Ann M Roberts

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018
represented by D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY
Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY
Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY
Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY
Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY
Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY
Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018
represented by D Kent Meyers (See above for address) LEAD ATTORNEY

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 41 of 110

ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Dorothy Sharon Gentry (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY

Kristopher Edward Koepsel (See above for address) TERMINATED: 06/18/2018 LEAD ATTORNEY

Richard T Garren (See above for address) TERMINATED: 09/12/2016 LEAD ATTORNEY

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Defendant
Wes Lane In his official capacity

represented by D Kent Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 42 of 110

TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Elizabeth Barnett LaBauve (See above for address) TERMINATED: 09/23/2014 LEAD ATTORNEY

Robert Allen Nance (See above for address) TERMINATED: 06/15/2018 LEAD ATTORNEY

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Defendant
Oklahoma Department of Human Services

represented by David Phillip Page (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donald Mitchell Bingham (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Donna Marie De Simone (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY

Emily B Fagan Department of Human Services Legal Services (OKC) General Counsel PO BOX 25352 OKLAHOMA CITY, OK 73125−0352 405−521−3638 Fax: 405−521−6816 Email: emily.fagan@okdhs.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald E Baze Department of Human Services Legal Services (OKC) General Counsel PO BOX 25352 OKLAHOMA CITY, OK 73125−0352 405.521.3638 Fax: 405−521−6816 Email: ronald.baze@okdhs.org

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 43 of 110

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie L Theban (See above for address) TERMINATED: 06/14/2018 LEAD ATTORNEY

Melvin Curtis Hall (See above for address) TERMINATED: 06/15/2018

Movant White Fields, Inc.

represented by Joseph Walters McAfee & Taft 211 N ROBINSON 10TH FL OKLAHOMA CITY, OK 73102 405−235−9621 Fax: 405−235−0439 Email: joe.walters@mcafeetaft.com TERMINATED: 06/08/2018 LEAD ATTORNEY

Movant Oklahoma Baptist Homes for Children

represented by Joseph Walters (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY

Movant
Oklahoma United Methodist Circle of Care

represented by Joseph Walters (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY

Movant Sand Springs Children's Home

represented by Joseph Walters (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY

Movant American Legion Children's Home

represented by Joseph Walters (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY

Movant Peppers Ranch, Inc.

represented by Joseph Walters (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY

Movant Oklahoma Lions Boys Ranch

represented by Joseph Walters (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY

Movant

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 44 of 110

Goodland Academy

represented by Joseph Walters (See above for address) TERMINATED: 06/08/2018 LEAD ATTORNEY

Date Filed 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008

# Docket Text
1 CIVIL COVER SHEET by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (lml, Dpty Clk) (Entered: 02/13/2008)
2 COMPLAINT against all defendants by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (lml, Dpty Clk) (Entered: 02/13/2008)
3 FILING FEES Paid in Full by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (lml, Dpty Clk) (Entered: 02/13/2008)
4 MOTION to Certify Class, MOTION for Appointment of Counsel and Brief in Support Thereof by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (With attachments) (Dorwart, Frederic) (Entered: 02/13/2008)
5 MOTION for Attorney(s) Marcia Robinson Lowry to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391017) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
6 MOTION for Attorney(s) Ira P. Lustbader to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391037) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
7 MOTION for Attorney(s) Yasmin Grewal−Kok to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391046) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
8 MOTION for Attorney(s) Jeremiah Frei−Pearson to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391051) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
9 MOTION for Attorney(s) Phillip A. Geraci to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391095) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
10 MOTION for Attorney(s) Mark A. Beckman to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391107) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
11 MOTION for Attorney(s) Nadine Fontaine to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391111) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
12 MOTION for Attorney(s) Carly Henek to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391135) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
13 MOTION for Attorney(s) Andrew Bauer to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000391138) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/13/2008)
14 ORDER by Judge Gregory K Frizzell ; granting 5 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/14/2008)
15 ORDER by Judge Gregory K Frizzell ; granting 6 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/14/2008)
16 ORDER by Judge Gregory K Frizzell ; granting 7 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) Modified on 2/15/2008 ENTERED IN ERROR −NO SIGNATURE ON PDF; SEE 23 FOR SIGNED PDF (crp, Dpty Clk). (Entered: 02/14/2008)
17 ORDER by Judge Gregory K Frizzell ; granting 8 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/14/2008)

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02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/15/2008 02/29/2008 02/29/2008
02/29/2008
03/03/2008
03/04/2008
03/04/2008 03/04/2008

18 ORDER by Judge Gregory K Frizzell ; granting 9 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/14/2008)
19 ORDER by Judge Gregory K Frizzell ; granting 10 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) Modified on 2/15/2008 ENTERED IN ERROR − NO SIGNATURE ON PDF; SEE 24 FOR SIGNED PDF (crp, Dpty Clk). (Entered: 02/14/2008)
20 ORDER by Judge Gregory K Frizzell ; granting 11 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/14/2008)
21 ORDER by Judge Gregory K Frizzell ; granting 13 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/14/2008)
22 ORDER by Judge Gregory K Frizzell ; granting 12 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/14/2008)
23 ORDER by Judge Gregory K Frizzell (Re: 16 Order, Ruling on Motion for Admission Pro Hac Vice ) (hbo, Dpty Clk) (Entered: 02/14/2008)
24 ORDER by Judge Gregory K Frizzell (Re: 19 Order, Ruling on Motion for Admission Pro Hac Vice ) (hbo, Dpty Clk) (Entered: 02/14/2008)
25 WAIVER of Service of Summons sent to C Brad Henry Returned Executed (Re: 2 Complaint ) by J.P., R.J., G.C., K.T., D.G., C.S., J.B., A.P., J.A. (Dorwart, Frederic) (Entered: 02/15/2008)
26 ATTORNEY APPEARANCE by Donald Mitchell Bingham on behalf of Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 02/29/2008)
27 Opposed MOTION for Extension of Time to Respond to Motion (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) Modified on 3/3/2008 to remove C Brad Henry as a filer (sac, Dpty Clk). (Entered: 02/29/2008)
28 BRIEF in Support of Motion (Re: 27 Opposed MOTION for Extension of Time to Respond to Motion ) by C Brad Henry, Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) Modified on 3/3/2008; this ENTRY MADE IN ERROR − wrong PDF attached − counsel notified to REFILE within 24 hours (sac, Dpty Clk). (Entered: 02/29/2008)
NOTICE of Docket Entry Modification; Error: 26 − attorney appearance link not made; 27 − C Brad Henry was selected as a filer; 28 − wrong PDF attached; Correction: 26 − added attorney to docket sheet; 27 − removed C Brad Henry as a filer; 28 − notified counsel to REFILE w/i 24 hours (Re: 26 Appearance − Attorney, 28 Brief in Support of Motion, 27 Opposed MOTION for Extension of Time to Respond to Motion ) (sac, Dpty Clk) (Entered: 03/03/2008)
29 BRIEF in Support of Motion (Re: 27 Opposed MOTION for Extension of Time to Respond to Motion ) by Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 03/04/2008)
30 ATTORNEY APPEARANCE by Donna Marie De Simone on behalf of Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (De Simone, Donna) (Entered: 03/04/2008)
31 RESPONSE in Opposition to Motion (Re: 27 Opposed MOTION for Extension of Time to Respond to Motion ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 03/04/2008)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 46 of 110

03/07/2008 03/10/2008 03/11/2008 03/11/2008 03/13/2008 03/13/2008 03/17/2008 03/18/2008
03/19/2008 03/20/2008
03/24/2008 03/24/2008
03/25/2008
03/25/2008 03/26/2008

32 ATTORNEY APPEARANCE by Melvin Curtis Hall on behalf of Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Hall, Melvin) (Entered: 03/07/2008)
33 CERTIFICATE of Service (Re: 32 Appearance − Attorney, ) by Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Hall, Melvin) (Entered: 03/10/2008)
34 NOTICE of Dismissal, dismissing Wayne Cunningham, (Re: 2 Complaint ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 03/11/2008)
35 ATTORNEY APPEARANCE by Paul DeMuro on behalf of JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 03/11/2008)
36 ATTORNEY APPEARANCE by Joseph W Strealy on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Strealy, Joseph) (Entered: 03/13/2008)
37 ATTORNEY APPEARANCE by Richard Weldon Freeman, Jr on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Freeman, Richard) (Entered: 03/13/2008)
38 ATTORNEY APPEARANCE by Robert Allen Nance on behalf of Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Nance, Robert) (Entered: 03/17/2008)
39 REPLY to Response to Motion (Re: 27 Opposed MOTION for Extension of Time to Respond to Motion ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Bingham, Donald) (Entered: 03/18/2008)
40 ERRATA/CORRECTION (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 03/19/2008)
41 ATTORNEY APPEARANCE by Catherine Ann O'Leary on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (O'Leary, Catherine) Modified on 3/24/2008 to remove Wayne Cunningham as a filer (crp, Dpty Clk). (Entered: 03/20/2008)
NOTICE of Docket Entry Modification; Error: Wayne Cunningham was selected as a filer in error; Correction: Removed Wayne Cunningham as a filer (Re: 41 Appearance − Attorney, ) (crp, Dpty Clk) (Entered: 03/24/2008)
42 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Responses due by 6/3/2008, Replies due by 6/17/2008); granting in part and denying in part 27 Motion for Extension of Time to Respond to Motion (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) (GKF2, Chambers) (Entered: 03/24/2008)
43 MOTION to Compel the Production of Documents and Brief in Support Thereof by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) Modified on 3/27/2008 this is a multi−part motion, but only 1 part was filed; Clerk's Office filed 2nd part (Motion for Protective Order) as 45 ; removed language from text regarding 2nd part of this multi−part motion (crp, Dpty Clk). (Entered: 03/25/2008)
45 MOTION for Protective Order (Submitted as part of 43 ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (crp, Dpty Clk) (Entered: 03/27/2008)
44 MINUTE ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): Courtroom #2, 3rd floor ( Motion Hearing set for 3/31/2008 at 09:30 AM before Magistrate Judge Frank H McCarthy) (Re: 43 MOTION to Compel

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 47 of 110

03/27/2008
03/28/2008 03/28/2008 03/28/2008 03/28/2008 03/28/2008 03/31/2008 04/01/2008 04/02/2008 04/02/2008

the Production of Documents and for Entry of a Stipulated Confidentiality Agreement and Protective Order and Brief in Support Thereof ) (jcm, Dpty Clk) (Entered: 03/26/2008)
NOTICE of Docket Entry Modification; Error: Document No. 43 is a multi−part motion, but only 1 part was filed (Motion to Compel); Correction: Clerk's Office filed 2nd part (Motion for Protective Order), as 45 ; removed language from text of 43 regarding 2nd part of multi−part motion (Re: 43 MOTION to Compel the Production of Documents and for Entry of a Stipulated Confidentiality Agreement and Protective Order and Brief in Support Thereof, 45 MOTION for Protective Order (Submitted as part of 43 ) ) (crp, Dpty Clk) (Entered: 03/27/2008)
46 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Continuance of Hearing (Re: 44 Minute Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s) ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 03/28/2008)
47 BRIEF in Support of Motion (Re: 46 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Continuance of HearingOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Continuance of Hearing ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 03/28/2008)
48 ATTORNEY APPEARANCE by Richard Alan Resetaritz on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Resetaritz, Richard) (Entered: 03/28/2008)
49 RESPONSE in Opposition to Motion (Re: 46 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Continuance of HearingOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Continuance of Hearing ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 03/28/2008)
50 RESPONSE in Opposition to Motion (Re: 43 MOTION to Compel the Production of Documents and for Entry of a Stipulated Confidentiality Agreement and Protective Order and Brief in Support Thereof, 45 MOTION for Protective Order (Submitted as part of 43 ) ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Bingham, Donald) (Entered: 03/28/2008)
51 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 3/31/2008, striking/terminating deadline(s)/Hearing(s), taking motion(s) under advisement (Re: 43 MOTION to Compel the Production of Documents and for Entry of a Stipulated Confidentiality Agreement and Protective Order and Brief in Support Thereof, 45 MOTION for Protective Order (Submitted as part of 43 ) ) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 03/31/2008)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 46 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Continuance of HearingOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Continuance of Hearing ) (crp, Dpty Clk) (Entered: 04/01/2008)
52 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Answer or Plead Otherwise (Re: 2 Complaint ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 04/02/2008)
53 ORDER by Magistrate Judge Frank H McCarthy ; granting 43 Motion to Compel; denying 45 Motion for Protective Order; denying 46 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (jcm, Dpty Clk) (Entered: 04/02/2008)

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04/02/2008 04/04/2008 04/07/2008 04/11/2008 04/11/2008 04/16/2008
04/16/2008
04/17/2008 04/18/2008
04/18/2008 04/21/2008
04/21/2008
04/21/2008 04/21/2008
04/23/2008 04/23/2008

54 ORDER by Judge Gregory K Frizzell ; granting 52 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (hbo, Dpty Clk) (Entered: 04/02/2008)
55 MOTION for Attorney(s) William Kapell to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000409354) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 04/04/2008)
56 ORDER by Judge Gregory K Frizzell ; granting 55 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 04/07/2008)
57 ATTORNEY APPEARANCE by Scott David Boughton on behalf of C Brad Henry (Boughton, Scott) (Entered: 04/11/2008)
58 MOTION to Dismiss and Brief in Support by C Brad Henry (Boughton, Scott) (Entered: 04/11/2008)
59 MOTION to Reconsider (Re: 53 Order, Ruling on Motion to Compel, Ruling on Motion for Protective Order, Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Nance, Robert) (Entered: 04/16/2008)
60 BRIEF in Support of Motion (Re: 59 MOTION to Reconsider ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Nance, Robert) (Entered: 04/16/2008)
61 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 59 MOTION to Reconsider ) (hbo, Dpty Clk) (Entered: 04/17/2008)
62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) Modified on 4/21/2008−This is a multi−part motion, see Doc # 65 for second part (lml, Dpty Clk). (Entered: 04/18/2008)
65 MOTION to Expedite Ruling (Submitted as Doc # 62 ) (Re: 62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (lml, Dpty Clk) (Entered: 04/21/2008)
63 ATTORNEY APPEARANCE by Robert P Skeith on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Skeith, Robert) (Entered: 04/21/2008)
64 Unopposed MOTION for Leave to Exceed Page Limitation Applicable to Brief in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Skeith, Robert) (Entered: 04/21/2008)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: MOTION to Expedite Ruling (Submitted as Doc # 62 ) ) (lml, Dpty Clk) (Entered: 04/21/2008)
NOTICE of Docket Entry Modification; Error: This is a multi−part motion, but only one part was e−filed (Motion for Protective Order); Correction: Filed the second motion part (Motion for Expedited Ruling) as Document No. 65 (Re: 62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof ) (lml, Dpty Clk) (Entered: 04/21/2008)
66 ORDER by Judge Gregory K Frizzell ; granting 64 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 04/23/2008)
67 Unopposed MOTION for Extension of Time to Answer (Re: 2 Complaint ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 04/23/2008)

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04/23/2008 04/24/2008 04/24/2008 04/24/2008 04/24/2008 04/24/2008 04/25/2008 04/25/2008 04/25/2008 04/28/2008
04/28/2008
04/29/2008 04/29/2008 04/29/2008 04/29/2008 05/05/2008

68 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 4/29/2008, Miscellaneous Hearing set for 4/30/2008 at 09:30 AM before Magistrate Judge Frank H McCarthy); denying 65 Motion to Expedite Ruling (FHM1, Chambers) (Entered: 04/23/2008)
69 Unopposed MOTION for Leave to Exceed Page Limitation by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 04/24/2008)
70 ERRATA/CORRECTION (Re: 69 Unopposed MOTION for Leave to Exceed Page Limitation ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 04/24/2008)
71 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 4/28/2008); granting 67 Motion for Extension of Time to Answer (hbo, Dpty Clk) (Entered: 04/24/2008)
72 MOTION to Dismiss for Lack of Jurisdiction by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Skeith, Robert) (Entered: 04/24/2008)
73 Unopposed MOTION to Seal Document by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Skeith, Robert) (Entered: 04/24/2008)
74 ORDER by Judge Gregory K Frizzell ; granting 73 Motion to Seal Document(s) (hbo, Dpty Clk) (Entered: 04/25/2008)
75 ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 69 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 04/25/2008)
76 SEALED DOCUMENT (Skeith, Robert) (Entered: 04/25/2008)
77 MOTION to Dismiss by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) Modified on 4/29/2008; this document has an attachment which should be attached to document 78 (sac, Dpty Clk). (Entered: 04/28/2008)
78 BRIEF in Support of Motion (Re: 77 MOTION to Dismiss ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) Modified on 4/29/2008; this document references an exhibit which was attached to 77 in error − see 77 for Exhibit 1 (sac, Dpty Clk). (Entered: 04/28/2008)
79 NOTICE Statement of Plaintiffs with Regard to the Court's April 23, 2008 Order (Re: 68 Opinion and Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion to Expedite Ruling, ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 04/29/2008)
80 STATUS REPORT by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Nance, Robert) (Entered: 04/29/2008)
81 ORDER by Magistrate Judge Frank H McCarthy setting/resetting deadline(s)/hearing(s): Striking hearing scheduled 4/30/2008, (FHM1, Chambers) (Entered: 04/29/2008)
82 RESPONSE in Opposition to Motion (Re: 58 MOTION to Dismiss and Brief in Support ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 04/29/2008)
83 RESPONSE in Opposition to Motion (Re: 59 MOTION to Reconsider ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 05/05/2008)

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05/05/2008
05/05/2008
05/05/2008
05/12/2008 05/12/2008
05/12/2008 05/14/2008 05/15/2008 05/15/2008
05/15/2008
05/16/2008 05/16/2008
05/16/2008 05/19/2008 05/19/2008 05/19/2008

84 Opposed MOTION for Protective Order by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) (Entered: 05/05/2008)
85 BRIEF in Support of Motion (Re: 84 Opposed MOTION for Protective Order ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 05/05/2008)
86 RESPONSE in Opposition to Motion (Re: 62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 05/05/2008)
87 REPLY to Response to Motion (Re: 58 MOTION to Dismiss and Brief in Support ) by C Brad Henry ; (Boughton, Scott) (Entered: 05/12/2008)
88 ATTORNEY APPEARANCE by Stephen Louis Cortes on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Cortes, Stephen) (Entered: 05/12/2008)
89 RESPONSE in Opposition to Motion (Re: 72 MOTION to Dismiss for Lack of Jurisdiction ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 05/12/2008)
90 Unopposed MOTION for Leave to Exceed Page Limitation by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 05/14/2008)
91 ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 90 Motion for Leave to Exceed Page Limitation (GKF2, Chambers) (Entered: 05/15/2008)
92 Unopposed MOTION to Supplement (Re: 77 MOTION to Dismiss ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 05/15/2008)
93 ERRATA/CORRECTION (Re: 92 Unopposed MOTION to Supplement ) by Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 05/15/2008)
94 ORDER by Judge Gregory K Frizzell ; granting 92 Motion to Supplement (hbo, Dpty Clk) (Entered: 05/16/2008)
95 Supplemental BRIEF in Support of Motion (Re: 77 MOTION to Dismiss ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 05/16/2008)
96 RESPONSE in Opposition to Motion (Re: 77 MOTION to Dismiss ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 05/16/2008)
97 REPLY to Response to Motion (Re: 62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 05/19/2008)
98 RESPONSE in Opposition to Motion (Re: 84 Opposed MOTION for Protective Order ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 05/19/2008)
99 REPLY to Response to Motion (Re: 59 MOTION to Reconsider ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) Modified on 5/20/2008 to change text to reflect correct event and create link to 59 (sac, Dpty Clk). (Entered: 05/19/2008)

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05/20/2008 05/22/2008 05/23/2008 05/23/2008 05/27/2008 05/27/2008 05/28/2008 05/29/2008 05/29/2008 05/30/2008
05/30/2008 05/30/2008 05/30/2008

NOTICE of Docket Entry Modification; Error: wrong event selected (Reply − Other); link incorrect; Correction: changed text to reflect correct event (Reply to Response to Motion); created link to 59 (Re: 99 Reply, ) (sac, Dpty Clk) (Entered: 05/20/2008)
100 Unopposed MOTION for Leave to Exceed Page Limitation Applicable to Response Brief in Opposition to Plaintiffs' Motion for Class Certification and Appointment of Class Counsel by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 05/22/2008)
101 ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 100 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 05/23/2008)
102 MOTION to Extend Terms of Interim Restrictions to Documents Produced by Plaintiffs (Re: 68 Opinion and Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion to Expedite Ruling, ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 05/23/2008)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 102 MOTION to Extend Terms of Interim Restrictions to Documents Produced by Plaintiffs ) (lml, Dpty Clk) (Entered: 05/27/2008)
103 REPLY to Response to Motion (Re: 72 MOTION to Dismiss for Lack of Jurisdiction ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Skeith, Robert) (Entered: 05/27/2008)
104 ERRATA/CORRECTION (Re: 103 Reply to Response to Motion, ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Skeith, Robert) (Entered: 05/28/2008)
105 ATTORNEY APPEARANCE by Joseph Walters on behalf of White Fields, Inc., Oklahoma Baptist Homes for Children, Oklahoma United Methodist Circle of Care, Sand Springs Children's Home, American Legion Children's Home, Peppers Ranch, Inc., Oklahoma Lions Boys Ranch, Goodland Academy (Walters, Joseph) (Entered: 05/29/2008)
106 MOTION for Leave to File Amicus Curiae in Support of Defendants' Motion to Dismiss and Brief in Support Thereof by White Fields, Inc., Oklahoma Baptist Homes for Children, Oklahoma United Methodist Circle of Care, Sand Springs Children's Home, American Legion Children's Home, Peppers Ranch, Inc., Oklahoma Lions Boys Ranch, Goodland Academy (Walters, Joseph) (Entered: 05/29/2008)
107 MINUTE ORDER by Court Clerk, directing White Fields, Inc.; Oklahoma Baptist Homes for Children; Oklahoma United Methodist Circle of Care; Sand Springs Children's Home; American Legion Children's Home; Peppers Ranch, Inc.; Oklahoma Lions Boys Ranch; Goodland Academy to file a Corporate Disclosure Statement pursuant to FRCvP 7.1 within five (5) days of this order, if they have not already done so. The parties shall use the form entitled Corporate Disclosure Statement available on the Courts website (please do not refile if already filed on non−court form unless directed to do so). If you have already filed your Corporate Disclosure Statement in this case, you are reminded to file a Supplemental Corporate Disclosure Statement within a reasonable time of any change in the information that the statement requires. (s−tjc, Dpty Clk) (Entered: 05/30/2008)
108 MOTION to Withdraw Attorney(s) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Lewis, G) (Entered: 05/30/2008)
109 REPLY to Response to Motion (Re: 77 MOTION to Dismiss ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 05/30/2008)
110 ERRATA/CORRECTION (Re: 109 Reply to Response to Motion ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 05/30/2008)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 52 of 110

06/02/2008 06/02/2008 06/03/2008
06/03/2008
06/03/2008 06/03/2008 06/04/2008 06/04/2008
06/04/2008 06/04/2008 06/04/2008 06/04/2008 06/04/2008

111 ATTORNEY APPEARANCE by Frederic Dorwart on behalf of JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 06/02/2008)
112 REPLY to Response to Motion (Re: 84 Opposed MOTION for Protective Order ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Bingham, Donald) (Entered: 06/02/2008)
113 MINUTE ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): Courtroom #2, 3rd floor ( Motion Hearing set for 6/17/2008 at 01:30 PM before Magistrate Judge Frank H McCarthy) (Re: 102 MOTION to Extend Terms of Interim Restrictions to Documents Produced by Plaintiffs, 62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof, 59 MOTION to Reconsider, 84 Opposed MOTION for Protective Order ) (jcm, Dpty Clk) (Entered: 06/03/2008)
114 MINUTE ORDER by Magistrate Judge Frank H McCarthy Courtroom #2, 3rd floor, setting/resetting deadline(s)/hearing(s): Due to a scheduling conflict please note the time change for this hearing from 1:30 to 2:00 ( Motion Hearing set for 6/17/2008 at 02:00 PM before Magistrate Judge Frank H McCarthy) (Re: 102 MOTION to Extend Terms of Interim Restrictions to Documents Produced by Plaintiffs, 62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof, 59 MOTION to Reconsider, 84 Opposed MOTION for Protective Order ) (jcm, Dpty Clk) (Entered: 06/03/2008)
115 ATTORNEY APPEARANCE by Holly M Hillerman on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Hillerman, Holly) (Entered: 06/03/2008)
116 RESPONSE in Opposition to Motion (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Hillerman, Holly) (Entered: 06/03/2008)
117 RESPONSE in Opposition to Motion (Re: 106 MOTION for Leave to File Amicus Curiae in Support of Defendants' Motion to Dismiss and Brief in Support Thereof ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (DeMuro, Paul) (Entered: 06/04/2008)
118 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent American Legion Department of Oklahoma, Corporate Parent American Legion for American Legion Children's Home) by American Legion Children's Home (Walters, Joseph) Modified on 6/5/2008 ENTERED IN ERROR − WRONG FILER NAMED ON PDF; ATTORNEY DIRECTED TO FILE ERRATA/CORRECTION TO DOCUMENT (crp, Dpty Clk). (Entered: 06/04/2008)
119 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent White Fields, Inc. for White Fields, Inc.) by White Fields, Inc. (Walters, Joseph) (Entered: 06/04/2008)
120 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent Peppers Ranch, Inc. for Peppers Ranch, Inc.) by Peppers Ranch, Inc. (Walters, Joseph) (Entered: 06/04/2008)
121 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent Goodland Academy for Goodland Academy) by Goodland Academy (Walters, Joseph) (Entered: 06/04/2008)
122 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent Oklahoma United Methodist Circle of Care for Oklahoma United Methodist Circle of Care) by Oklahoma United Methodist Circle of Care (Walters, Joseph) (Entered: 06/04/2008)
123 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent Oklahoma Baptist Homes for Children for Oklahoma Baptist Homes for Children) by Oklahoma Baptist Homes for Children (Walters, Joseph) (Entered: 06/04/2008)

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06/04/2008 06/04/2008 06/04/2008
06/05/2008
06/05/2008 06/09/2008 06/10/2008
06/12/2008 06/12/2008 06/12/2008 06/13/2008 06/13/2008 06/16/2008 06/16/2008 06/17/2008 06/17/2008

124 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent Sand Springs Children's Home for Sand Springs Children's Home) by Sand Springs Children's Home (Walters, Joseph) (Entered: 06/04/2008)
125 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent Oklahoma Lions Boys Ranch for Oklahoma Lions Boys Ranch) by Oklahoma Lions Boys Ranch (Walters, Joseph) (Entered: 06/04/2008)
126 MOTION for Revised Date for Submission of Amicus Curiae Brief (Re: 106 MOTION for Leave to File Amicus Curiae in Support of Defendants' Motion to Dismiss and Brief in Support Thereof ) by White Fields, Inc., Oklahoma Baptist Homes for Children, Oklahoma United Methodist Circle of Care, Sand Springs Children's Home, Peppers Ranch, Inc., Oklahoma Lions Boys Ranch, Goodland Academy, American Legion Children's Home (Walters, Joseph) Modified on 6/5/2008 to add filer, and to remove duplicate word in title (crp, Dpty Clk). (Entered: 06/04/2008)
NOTICE of Docket Entry Modification; Error: Docket text contained double wording, and American Legion Children's Home was not selected as a filer; Correction: Removed double wording from text, and added American Legion Children's Home as a filer (Re: 126 MOTION Motion for Revised Date for Submission of Amicus Curiae Brief ) (crp, Dpty Clk) (Entered: 06/05/2008)
127 ERRATA/CORRECTION (Re: 118 Disclosure Statement (Corporate), Disclosure Statement (Corporate) ) by American Legion Children's Home (With attachments) (Walters, Joseph) (Entered: 06/05/2008)
128 ATTORNEY APPEARANCE by Tricia Louise Everest on behalf of C Brad Henry (Everest, Tricia) (Entered: 06/09/2008)
129 RESPONSE in Opposition to Motion (Re: 102 MOTION to Extend Terms of Interim Restrictions to Documents Produced by Plaintiffs ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 06/10/2008)
130 Unopposed MOTION for Leave to Exceed Page Limitation by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 06/12/2008)
131 JOINT STATUS REPORT by JP, RJ, GC, KT, C Brad Henry, Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, DG, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick, CS, JB, AP, JA (DeMuro, Paul) (Entered: 06/12/2008)
132 ORDER by Judge Gregory K Frizzell ; granting 130 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 06/12/2008)
133 MOTION to Seal Document by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 06/13/2008)
134 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 133 MOTION to Seal Document ) (JLE, Chambers) (Entered: 06/13/2008)
135 ORDER by Magistrate Judge Frank H McCarthy ; granting 133 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 06/16/2008)
136 SEALED DOCUMENT (DeMuro, Paul) (Entered: 06/16/2008)
137 REPLY to Response to Motion (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (DeMuro, Paul) Modified on 6/18/2008 to change text to reflect correct event (sac, Dpty Clk). (Entered: 06/17/2008)
138 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 6/17/2008 ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 6/27/2008); taking motion(s) under advisement; denying 59 Motion to Reconsider; granting 102 Motion for Miscellaneous Relief (Re: 102 MOTION to Extend Terms of Interim Restrictions to Documents Produced by Plaintiffs, 59

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 54 of 110

06/18/2008 06/20/2008
06/24/2008
06/25/2008 06/27/2008 07/01/2008 07/03/2008 07/03/2008 07/03/2008 07/07/2008 07/07/2008
07/08/2008

MOTION to Reconsider, 84 Opposed MOTION for Protective Order, 62 MOTION for Protective Order and Expedited Briefing and Brief in Support Thereof ) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 06/17/2008)
NOTICE of Docket Entry Modification; Error: wrong event selected (Response in Support of Motion); Correction: changed text to reflect correct event (Reply to Response to Motion); notified counsel regarding filing attorney signature (Re: 137 Response in Support of Motion, ) (sac, Dpty Clk) (Entered: 06/18/2008)
139 REPLY to Response to Motion (Re: 106 MOTION for Leave to File Amicus Curiae in Support of Defendants' Motion to Dismiss and Brief in Support Thereof ) by White Fields, Inc., Oklahoma Baptist Homes for Children, Oklahoma United Methodist Circle of Care, Sand Springs Children's Home, American Legion Children's Home, Peppers Ranch, Inc., Oklahoma Lions Boys Ranch, Goodland Academy ; (Walters, Joseph) (Entered: 06/20/2008)
140 MINUTE ORDER by Judge Gregory K Frizzell The Group Homes' Motion for Permission to File Brief as Amicus Curiae [Document No. 106] is granted; The Group Homes' Motion for Revised Date for Submission of Amicus Curiae Brief [Document No. 126] is granted; The Group Homes shall to file their amicus curiae brief within 10 days, as defined by Fed. R. Civ. P. 6, of the date of this Order ; granting 106 Motion for Leave to File Document(s); granting 126 Motion for Miscellaneous Relief (GKF2, Chambers) (Entered: 06/24/2008)
141 ORDER by Judge Gregory K Frizzell ; terminating attorney G Michael Lewis ; granting 108 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 06/25/2008)
142 NOTICE REGARDING THE PARTIES' MOTIONS FOR PROTECTIVE ORDER by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (DeMuro, Paul) (Entered: 06/27/2008)
143 RESPONSE (Re: 142 Notice (Other) ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 07/01/2008)
144 ATTORNEY APPEARANCE by Thomas Martin Askew on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Askew, Thomas) (Entered: 07/03/2008)
145 Opposed MOTION for Protective Order, Opposed MOTION to Stay Discovery by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Askew, Thomas) (Entered: 07/03/2008)
146 BRIEF in Support of Motion (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Askew, Thomas) (Entered: 07/03/2008)
147 ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 62 Motion for Protective Order; granting in part and denying in part 84 Motion for Protective Order (jcm, Dpty Clk) (Entered: 07/07/2008)
148 Unopposed MOTION Extension of Time to File Amicus Curiae Brief (Re: 140 Minute Order,,, Ruling on Motion for Leave to File Document(s), Ruling on Motion for Leave to File Document(s), Ruling on Motion for Leave to File Document(s), Ruling on Motion for Miscellaneous Relief,, ) by White Fields, Inc., Oklahoma Baptist Homes for Children, Oklahoma United Methodist Circle of Care, Sand Springs Children's Home, American Legion Children's Home, Peppers Ranch, Inc., Oklahoma Lions Boys Ranch, Goodland Academy (Walters, Joseph) (Entered: 07/07/2008)
149 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 7/16/2008); granting 148 Motion for Miscellaneous Relief (hbo, Dpty Clk) (Entered: 07/08/2008)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 55 of 110

07/16/2008
07/16/2008
07/17/2008 07/17/2008 07/23/2008
07/24/2008
07/25/2008 07/25/2008
07/28/2008 07/28/2008 07/29/2008
08/04/2008 08/06/2008 08/06/2008

150 Unopposed MOTION for Hearing Expedited Hearing, Unopposed MOTION to Expedite Ruling (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 07/16/2008)
151 BRIEF in Support of Motion (Re: 77 MOTION to Dismiss, 58 MOTION to Dismiss and Brief in Support, 72 MOTION to Dismiss for Lack of Jurisdiction ) by White Fields, Inc., Oklahoma Baptist Homes for Children, Oklahoma United Methodist Circle of Care, Sand Springs Children's Home, American Legion Children's Home, Peppers Ranch, Inc., Oklahoma Lions Boys Ranch, Goodland Academy ; (With attachments) (Walters, Joseph) (Entered: 07/16/2008)
152 MOTION to Reconsider (Re: 147 Order, Ruling on Motion for Protective Order, ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) (Entered: 07/17/2008)
153 RESPONSE in Opposition to Motion (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (DeMuro, Paul) (Entered: 07/17/2008)
154 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 150 Unopposed MOTION for Hearing Expedited HearingUnopposed MOTION to Expedite Ruling, 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) (JLE, Chambers) (Entered: 07/23/2008)
155 REPLY to Response to Motion (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Askew, Thomas) (Entered: 07/24/2008)
156 RESPONSE in Opposition to Motion (Re: 152 MOTION to Reconsider ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (DeMuro, Paul) (Entered: 07/25/2008)
157 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): Courtroom #2, 3rd floor ( Motion Hearing set for 7/30/2008 at 09:30 AM before Magistrate Judge Frank H McCarthy); granting 150 Motion for Hearing (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) (jcm, Dpty Clk) (Entered: 07/25/2008)
158 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 07/28/2008)
159 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 158 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) (JLE, Chambers) (Entered: 07/28/2008)
160 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): Courtroom #2, 3rd floor ( Motion Hearing set for 8/6/2008 at 09:30 AM before Magistrate Judge Frank H McCarthy); granting 158 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) (jcm, Dpty Clk) (Entered: 07/29/2008)
161 RESPONSE (Re: 151 Brief in Support of Motion, ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (DeMuro, Paul) (Entered: 08/04/2008)
162 Oral MOTION to Supplement (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) by Richard L DeVaughn (jcm, Dpty Clk) (Entered: 08/06/2008)
163 SUPPLEMENT (Re: 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 56 of 110

08/06/2008
08/11/2008 09/19/2008 10/13/2008 10/14/2008 10/16/2008
10/23/2008
10/27/2008
10/29/2008 11/06/2008 11/20/2008 11/20/2008 11/21/2008 11/24/2008 12/01/2008 12/02/2008

Young, Sr, Howard H Hendrick (With attachments) (Askew, Thomas) (Entered: 08/06/2008)
164 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 8/6/2008 ; striking/terminating deadline(s)/Hearing(s); taking motion(s) under advisement; denying 152 Motion to Reconsider; granting 162 Motion to Supplement (Re: 162 Oral MOTION to Supplement, 145 Opposed MOTION for Protective OrderOpposed MOTION to Stay Discovery, 152 MOTION to Reconsider ) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 08/06/2008)
165 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 145 Motion for Protective Order; granting in part and denying in part 145 Motion to Stay (jcm, Dpty Clk) (Entered: 08/11/2008)
166 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Discovery Hearing held on 9/19/2008 by telephone (Court Reporter: deposition court reporter) (jcm, Dpty Clk) (Entered: 09/19/2008)
167 MOTION for Hearing by DG, AP, CS, GC, JA, JB, JP, KT, RJ (DeMuro, Paul) Modified on 10/14/2008 to add filers (lml, Dpty Clk). (Entered: 10/13/2008)
NOTICE of Docket Entry Modification; Error: Not all filers were selected when filed; Correction: Edited docket text and added remaining plaintiffs as filers (Re: 167 MOTION for Hearing ) (lml, Dpty Clk) (Entered: 10/14/2008)
168 SUPPLEMENT (Re: 116 Response in Opposition to Motion, ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Hillerman, Holly) (Entered: 10/16/2008)
169 Unopposed MOTION for Leave to File Response to DHS Defendants Notice of Supplemental Authority in Further Support of Opposition to Plaintiffs Motion for Class Certification and Appointment of Counsel (Re: 168 Supplement, ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 10/23/2008)
170 ORDER by Judge Gregory K Frizzell re: Response to Notice of Supplemental Authority ; granting 169 Motion for Leave to File Document(s) (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof, 116 Response in Opposition to Motion, 168 Supplement, ) (pll, Dpty Clk) (Entered: 10/27/2008)
171 RESPONSE (Re: 168 Supplement, ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 10/29/2008)
172 MOTION to Compel Discovery by Howard H Hendrick (With attachments) (Nance, Robert) (Entered: 11/06/2008)
173 MOTION to Seal Document by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 11/20/2008)
174 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 173 MOTION to Seal Document ) (hbo, Dpty Clk) (Entered: 11/20/2008)
175 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 173 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 11/21/2008)
176 RESPONSE in Opposition to Motion (Re: 172 MOTION to Compel Discovery ) by RJ, DG, JB ; (With attachments) (Dorwart, Frederic) (Entered: 11/24/2008)
177 Unopposed MOTION to Seal Document by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 12/01/2008)
178 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 177 Unopposed MOTION to Seal Document ) (JLE, Chambers) (Entered: 12/02/2008)

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12/02/2008 12/04/2008 12/04/2008 12/05/2008 12/08/2008
12/08/2008
12/08/2008 12/09/2008
12/10/2008
12/10/2008
12/11/2008 12/15/2008
12/15/2008
12/16/2008 12/16/2008
12/17/2008 12/17/2008

179 ORDER by Magistrate Judge Frank H McCarthy ; granting 177 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 12/02/2008)
180 SEALED MOTION (Dorwart, Frederic) Contains One or More Restricted PDFs (Entered: 12/04/2008)
181 MOTION to Compel by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 12/04/2008)
182 MINUTE ORDER by Court Clerk, referring motion(s) to Magistrate Judge McCarthy (Re: 180 SEALED MOTION ) (lml, Dpty Clk) (Entered: 12/05/2008)
183 MINUTE ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 12/22/2008 at 09:30 AM before Judge Gregory K Frizzell); granting 167 Motion for Hearing (Re: 72 MOTION to Dismiss for Lack of Jurisdiction, 77 MOTION to Dismiss ) (hbo, Dpty Clk) (Entered: 12/08/2008)
184 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 1/7/2009 at 09:30 AM before Judge Gregory K Frizzell) (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) (hbo, Dpty Clk) (Entered: 12/08/2008)
185 REPLY to Response to Motion (Re: 172 MOTION to Compel Discovery ) by Howard H Hendrick ; (With attachments) (Nance, Robert) (Entered: 12/08/2008)
186 Unopposed MOTION for Leave to File Supplemental Brief in Support of DHS Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction [Dkt. 72] (Re: 72 MOTION to Dismiss for Lack of Jurisdiction ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 12/09/2008)
187 ORDER by Judge Gregory K Frizzell re: supplemental brief to Motion to Dismiss ; setting/resetting deadline(s)/hearing(s): ( Replies due by 12/16/2008); granting 186 Motion for Leave to File Document(s) (Re: 72 MOTION to Dismiss for Lack of Jurisdiction ) (pll, Dpty Clk) (Entered: 12/10/2008)
188 Supplemental BRIEF in Support of Motion (Re: 72 MOTION to Dismiss for Lack of Jurisdiction ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Skeith, Robert) (Entered: 12/10/2008)
189 ORDER by Judge Gregory K Frizzell ; terminating party C Brad Henry ; granting 58 Motion to Dismiss (pll, Dpty Clk) (Entered: 12/11/2008)
190 Unopposed MOTION for Leave to File Response in Opposition to DHS Defendants' Supplemental Brief in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction (Re: 188 Brief in Support of Motion, ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 12/15/2008)
191 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 12/17/2008); granting 190 Motion for Leave to File Document(s) (Re: 188 Brief in Support of Motion, ) (hbo, Dpty Clk) (Entered: 12/15/2008)
192 MOTION to Seal Document by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 12/16/2008)
193 RESPONSE in Opposition to Motion (Re: 192 MOTION to Seal Document ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 12/16/2008)
194 MINUTE ORDER by Judge Gregory K Frizzell ; granting 192 Motion to Seal Document(s) (GKFJ, Judge) (Entered: 12/17/2008)
195 SEALED DOCUMENT(Dorwart, Frederic) Contains One or More Restricted PDFs Modified on 12/18/2008 to change text to reflect correct event (sac, Dpty Clk).

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 58 of 110

12/17/2008 12/18/2008
12/18/2008
12/19/2008 12/19/2008
12/22/2008 12/27/2008 12/29/2008
12/29/2008 12/29/2008 01/05/2009 01/06/2009 01/06/2009 01/06/2009

(Entered: 12/17/2008)
196 RESPONSE (Re: 188 Brief in Support of Motion, ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 12/17/2008)
197 Unopposed MOTION for Extension of Time to Respond to Motion (Re: 180 SEALED MOTION ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) Modified on 12/19/2008 to correct title of event (s−tjc, Dpty Clk). (Entered: 12/18/2008)
198 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 197 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) To File ResponseUnopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) To File Response ) (hbo, Dpty Clk) (Entered: 12/18/2008)
NOTICE of Docket Entry Modification; Error: This was filed using (Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s); Correction: Edited docket text to reflect the correct event (Re: 197 MOTION for Extension of Time to Respond to Motion ) (s−tjc, Dpty Clk) (Entered: 12/19/2008)
199 MINUTE ORDER by Judge Gregory K Frizzell (Due to schedule conflict the hearing on motions set 12−22−08 is stricken & reset, The hearing on Class Cert set 1−7−09 is stricken to be set a later date.), setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 1/7/2009 at 09:30 AM before Judge Gregory K Frizzell) (Re: 72 MOTION to Dismiss for Lack of Jurisdiction, 77 MOTION to Dismiss ) (hbo, Dpty Clk) (Entered: 12/19/2008)
200 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Responses due by 12/29/2008); granting 197 Motion for Extension of Time to Respond to Motion (Re: 180 SEALED MOTION ) (jcm, Dpty Clk) (Entered: 12/22/2008)
201 Opposed MOTION for Leave to Exceed Page Limitation in Response to Plaintiffs' Motion to Compel (Dkt. 181) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 12/27/2008)
202 RESPONSE in Opposition to Motion (Re: 201 Opposed MOTION for Leave to Exceed Page Limitation in Response to Plaintiffs' Motion to Compel (Dkt. 181)Opposed MOTION for Leave to Exceed Page Limitation in Response to Plaintiffs' Motion to Compel (Dkt. 181) ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 12/29/2008)
203 ORDER by Magistrate Judge Frank H McCarthy ; granting 201 Motion for Leave to Exceed Page Limitation (jcm, Dpty Clk) (Entered: 12/29/2008)
204 RESPONSE in Opposition to Motion (Re: 181 MOTION to Compel ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Hillerman, Holly) (Entered: 12/29/2008)
205 Unopposed MOTION to Dismiss Part of Claim by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 01/05/2009)
206 ORDER by Judge Gregory K Frizzell (Dismiss Fifth Amendment claim only) ; granting 205 Motion to Dismiss (hbo, Dpty Clk) (Entered: 01/06/2009)
207 SEALED MOTION (Bingham, Donald) Contains One or More Restricted PDFs (Entered: 01/06/2009)
208 MOTION for Summary Judgment Against Plaintiff D.G., and Brief in Support by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) (Entered: 01/06/2009)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 59 of 110

01/06/2009 01/07/2009
01/08/2009 01/09/2009 01/09/2009 01/09/2009
01/12/2009 01/16/2009 01/16/2009 01/17/2009
01/19/2009 01/19/2009 01/20/2009 01/23/2009 01/26/2009

209 SEALED MOTION (Bingham, Donald) Contains One or More Restricted PDFs (Entered: 01/06/2009)
210 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Motion Hearing held on 1/7/2009 ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 3/9/2009); taking motion(s) under advisement; denying 72 Motion to Dismiss for Lack of Jurisdiction (Re: 77 MOTION to Dismiss, 72 MOTION to Dismiss for Lack of Jurisdiction ) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) Modified on 1/9/2009 to correct hearing date (lml, Dpty Clk). Modified on 1/9/2009to correct date (hbo, Dpty Clk). (Entered: 01/08/2009)
211 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 2/24/2009 at 09:30 AM before Judge Gregory K Frizzell) (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) (hbo, Dpty Clk) (Entered: 01/08/2009)
212 Unopposed MOTION for Extension of Time to Reply to Motion Response (Re: 180 SEALED MOTION, 181 MOTION to Compel ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 01/09/2009)
213 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 212 Unopposed MOTION for Extension of Time to Reply to Motion Response ) (hbo, Dpty Clk) (Entered: 01/09/2009)
NOTICE of Docket Entry Modification; Error: The incorrect hearing date was selected when filed; Correction: Edited docket text to reflect correct hearing date (Re: 210 Minutes of Motion Hearing,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Taking Motion(s) Under Advisement, Taking Motion(s) Under Advisement, Ruling on Motion to Dismiss for Lack of Jurisdiction, ) (lml, Dpty Clk) (Entered: 01/09/2009)
214 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Replies due by 1/19/2009); granting 212 Motion for Extension of Time to Reply to Motion Response (Re: 181 MOTION to Compel, 180 SEALED MOTION ) (jcm, Dpty Clk) (Entered: 01/12/2009)
215 Unopposed MOTION to Seal Document by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 01/16/2009)
216 ORDER by Magistrate Judge Frank H McCarthy ; granting 215 Motion to Seal Document(s) (MLC, Chambers) (Entered: 01/16/2009)
217 TRANSCRIPT of Proceedings (Unredacted) of motion hearing held on 01/07/2009 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−139). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 210 Minutes of Motion Hearing, Setting/Resetting Deadline(s)/Hearing(s), Taking Motion(s) Under Advisement, Ruling on Motion to Dismiss for Lack of Jurisdiction,) (grd, Crt Rptr) Modified on 4/17/2009 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 01/17/2009)
218 SEALED DOCUMENT (Dorwart, Frederic) (Entered: 01/19/2009)
219 REPLY to Response to Motion (Re: 181 MOTION to Compel ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 01/19/2009)
220 OPINION AND ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 77 Motion to Dismiss (hbo, Dpty Clk) (Entered: 01/20/2009)
221 SEALED ORDER (s−srb, Dpty Clk) (Entered: 01/23/2009)
222 MOTION to Seal Document by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 01/26/2009)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 60 of 110

01/26/2009 01/26/2009 01/28/2009 01/28/2009 01/28/2009 01/28/2009 01/28/2009 01/29/2009 01/29/2009 01/30/2009 02/02/2009 02/02/2009 02/06/2009
02/06/2009 02/10/2009 02/11/2009

223 SEALED DOCUMENT (Dorwart, Frederic) (Entered: 01/26/2009)
224 RESPONSE in Opposition to Motion (Re: 208 MOTION for Summary Judgment Against Plaintiff D.G., and Brief in Support ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 01/26/2009)
225 RESPONSE in Support of Motion (Re: 222 MOTION to Seal Document ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 01/28/2009)
226 ORDER by Judge Gregory K Frizzell ; granting 222 Motion to Seal Document(s) (hbo, Dpty Clk) (Entered: 01/28/2009)
227 ANSWER (Re: 2 Complaint ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 01/28/2009)
228 SEALED UNREDACTED VERSION of Dkt# 227 per Local Rule 5.3(b) (Bingham, Donald) Modified on 1/29/2009 to correct title of event (lml, Dpty Clk). (Entered: 01/28/2009)
229 SEALED MOTION (Bingham, Donald) Contains One or More Restricted PDFs (Entered: 01/28/2009)
NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Sealed Document); Correction: Edited docket text to reflect correct event (Sealed Unredacted Version per Local Rule 5.3(b) (Re: 228 Sealed Document ) (lml, Dpty Clk) (Entered: 01/29/2009)
230 SEALED ORDER (s−srb, Dpty Clk) (Entered: 01/29/2009)
231 MINUTE ORDER by Judge Gregory K Frizzell Defendants' Unopposed Motion for Expedited Hearing on its Motion for Protective Order Limiting Discovery 145 is moot in light of the hearing held 8/6/08 before Magistrate Judge Frank H. McCarthy ; finding as moot 150 Motion to Expedite Ruling (GKFJ, Judge) (Entered: 01/30/2009)
232 ATTORNEY APPEARANCE by Kristopher Edward Koepsel on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Koepsel, Kristopher) (Entered: 02/02/2009)
233 ATTORNEY APPEARANCE by John Patrick Mensching, Jr on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Mensching, John) (Entered: 02/02/2009)
234 Unopposed MOTION for Extension of Time to Reply to Motion Response until 2/11/09 (Re: 207 SEALED MOTION, 208 MOTION for Summary Judgment Against Plaintiff D.G., and Brief in Support ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 02/06/2009)
235 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Replies due by 2/11/2009); granting 234 Motion for Extension of Time to Reply to Motion Response (Re: 208 MOTION for Summary Judgment Against Plaintiff D.G., and Brief in Support ) (hbo, Dpty Clk) (Entered: 02/06/2009)
236 MINUTE ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 2/19/2009 at 01:30 PM before Magistrate Judge Frank H McCarthy) (Re: 181 MOTION to Compel, 172 MOTION to Compel Discovery ) (jcm, Dpty Clk) (Entered: 02/10/2009)
237 MOTION leave to appear as amicus curiae and proposed brief (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by Oklahoma Public Employees Association (Novick, Steven) (Entered: 02/11/2009)

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02/11/2009
02/11/2009 02/11/2009 02/13/2009 02/13/2009 02/13/2009 02/17/2009
02/18/2009 02/18/2009
02/19/2009
02/20/2009 02/20/2009
02/27/2009 03/05/2009 03/13/2009
03/13/2009
03/16/2009

238 REPLY to Response to Motion (Re: 207 SEALED MOTION, 208 MOTION for Summary Judgment Against Plaintiff D.G., and Brief in Support ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Bingham, Donald) (Entered: 02/11/2009)
239 SEALED UNREDACTED VERSION of Dkt # 238 per Local Rule 5.3(b) (Bingham, Donald) (Entered: 02/11/2009)
240 SEALED MOTION (Bingham, Donald) Contains One or More Restricted PDFs (Entered: 02/11/2009)
241 BRIEF Plaintiff Children's Statement of Relief Sought by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 02/13/2009)
242 Unopposed MOTION to Supplement (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 02/13/2009)
243 SEALED ORDER (sjm, Dpty Clk) (Entered: 02/13/2009)
244 RESPONSE in Opposition to Motion (Re: 237 MOTION leave to appear as amicus curiae and proposed brief ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Nance, Robert) (Entered: 02/17/2009)
245 ORDER by Judge Gregory K Frizzell ; granting 242 Motion to Supplement (Re: 241 Brief ) (hbo, Dpty Clk) (Entered: 02/18/2009)
246 ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 3/13/2009, Motion Hearing set for 3/30/2009 at 09:30 AM before Judge Gregory K Frizzell) (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) (hbo, Dpty Clk) (Entered: 02/18/2009)
247 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 2/19/2009, striking/terminating deadline(s)/Hearing(s), taking motion(s) under advisement (Re: 172 MOTION to Compel Discovery, 181 MOTION to Compel ) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 02/19/2009)
248 SEALED ORDER (sjm, Dpty Clk) (Main Document 248 replaced on 12/21/2017 to provide better image) (pll, Dpty Clk). (Entered: 02/20/2009)
249 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 5/22/2009); denying 172 Motion to Compel; granting 181 Motion to Compel (jcm, Dpty Clk) Modified on 2/23/2009 to correct title of event (s−tjc, Dpty Clk). (Entered: 02/20/2009)
250 REPLY to Response to Motion (Re: 237 MOTION leave to appear as amicus curiae and proposed brief ) by Oklahoma Public Employees Association ; (Novick, Steven) (Entered: 02/27/2009)
251 ORDER by Judge Gregory K Frizzell ; denying 237 Motion for Miscellaneous Relief (hbo, Dpty Clk) (Entered: 03/05/2009)
252 Supplemental BRIEF in Support of Motion (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 03/13/2009)
253 BRIEF (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Nance, Robert) Modified on 3/16/2009 to correct event (tjc, Dpty Clk). (Entered: 03/13/2009)
NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Response in Oppostion to Motion); Correction: Edited docket text to reflect correct event (Brief) (Re: 253 Response in Opposition to Motion, ) (tjc, Dpty Clk) (Entered:

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03/26/2009 03/26/2009
03/30/2009 03/30/2009 04/10/2009 04/10/2009 04/15/2009 04/17/2009
04/17/2009 04/17/2009 04/17/2009 05/04/2009 05/04/2009 05/04/2009 05/04/2009
05/05/2009 05/05/2009
05/07/2009 05/08/2009

03/16/2009)
254 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 03/26/2009)
255 MINUTE ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 5/5/2009 at 09:30 AM before Judge Gregory K Frizzell); granting 254 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) (hbo, Dpty Clk) (Entered: 03/26/2009)
256 MOTION for Attorney(s) Gena Wiltsek to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000537671) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 03/30/2009)
257 ORDER by Judge Gregory K Frizzell ; granting 256 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 03/30/2009)
258 MOTION to Withdraw Attorney(s) Mark Beckman by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 04/10/2009)
259 ORDER by Judge Gregory K Frizzell ; terminating attorney Mark A Beckman ; granting 258 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 04/10/2009)
260 OPINION AND ORDER by Judge Gregory K Frizzell ; granting 207 Sealed Motion; granting 208 Motion for Summary Judgment (hbo, Dpty Clk) (Entered: 04/15/2009)
261 MOTION for Summary Judgment Against Plaintiff C.S. by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Hillerman, Holly) (Entered: 04/17/2009)
262 SEALED UNREDACTED VERSION of Dkt # 261 per Local Rule 5.3(b) (Hillerman, Holly) (Entered: 04/17/2009)
263 SEALED MOTION (Hillerman, Holly) Contains One or More Restricted PDFs (Entered: 04/17/2009)
264 ORDER by Judge Gregory K Frizzell ; granting 263 Sealed Motion (Re: 261 MOTION for Summary Judgment Against Plaintiff C.S., 263 SEALED MOTION ) (hbo, Dpty Clk) (Entered: 04/17/2009)
265 SEALED DOCUMENT (Dorwart, Frederic) (Entered: 05/04/2009)
266 RESPONSE in Opposition to Motion (Re: 261 MOTION for Summary Judgment Against Plaintiff C.S. ) by JP, RJ, GC, KT, CS, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 05/04/2009)
267 MOTION to Seal Document (Doc. No. 265) by JP, RJ, GC, KT, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 05/04/2009)
268 REPLY to Response to Motion (Re: 261 MOTION for Summary Judgment Against Plaintiff C.S. ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Hillerman, Holly) (Entered: 05/04/2009)
269 ORDER by Judge Gregory K Frizzell ; granting 267 Motion to Seal Document(s) (Re: 265 Sealed Document ) (hbo, Dpty Clk) (Entered: 05/05/2009)
270 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Motion Hearing held on 5/5/2009 ; certifying class action; striking/terminating deadline(s)/Hearing(s); granting 4 Motion to Certify Class (Re: 4 MOTION to Certify Class MOTION for Appointment of Counsel and Brief in Support Thereof ) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 05/05/2009)
271 MINUTE ORDER by Judge Gregory K Frizzell ; granting 4 Motion for Appointment of Counsel (GKFJ, Judge) (Entered: 05/07/2009)
272 TRANSCRIPT of Proceedings (Unredacted) of motion hearing (an excerpt) held on 05/05/2009 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages:

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 63 of 110

05/14/2009 05/14/2009 05/19/2009 05/21/2009 05/22/2009
06/08/2009 06/11/2009 06/15/2009 06/19/2009 06/19/2009 06/22/2009 06/22/2009

1−19). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 270 Minutes of Motion Hearing, Certifying Class Action, Striking/Terminating Deadline(s)/Hearing(s), Ruling on Motion to Certify Class) (grd, Crt Rptr) Modified on 8/12/2009 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 05/08/2009)
273 MOTION to Withdraw Attorney(s) Robert P. Skeith by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Skeith, Robert) (Entered: 05/14/2009)
274 ORDER by Judge Gregory K Frizzell ; terminating attorney Robert P Skeith ; granting 273 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 05/14/2009)
275 MOTION for Hearing /Scheduling Conference by JP, RJ, GC, KT, CS, JB, AP, JA (DeMuro, Paul) (Entered: 05/19/2009)
276 MINUTE ORDER by Judge Gregory K Frizzell Defendants shall respond to Plaintiffs' Motion for a Scheduling Conference 275 on or before June 8, 2009. Defendants shall propose their alternative pretrial deadlines in the response. (GKFJ, Judge) (Entered: 05/21/2009)
277 TRANSCRIPT of Proceedings (Unredacted) of motion hearing held on 05/05/2009 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−97). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 270 Minutes of Motion Hearing, Certifying Class Action, Striking/Terminating Deadline(s)/Hearing(s), Ruling on Motion to Certify Class) (grd, Crt Rptr) Modified on 9/4/2009 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 05/22/2009)
278 RESPONSE in Support of Motion (Re: 275 MOTION for Hearing /Scheduling Conference ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Bingham, Donald) (Entered: 06/08/2009)
279 MINUTE ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Scheduling Conference set for 7/8/2009 at 09:30 AM before Judge Gregory K Frizzell); granting 275 Motion for Hearing (hbo, Dpty Clk) (Entered: 06/11/2009)
280 MOTION for Protective Order AND BRIEF IN SUPPORT by Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (De Simone, Donna) (Entered: 06/15/2009)
281 NOTICE OF APPEAL to Circuit Court (filed per 10th Circuit Order dated 6/19/09) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (s−srb, Dpty Clk). (Entered: 06/19/2009)
282 PRELIMINARY RECORD Sent to Circuit Court (Re: 281 Notice of Appeal to Circuit Court, ) (With attachments) (s−srb, Dpty Clk) (Entered: 06/19/2009)
283 APPEAL NUMBER INFORMATION from Circuit Court assigning Case Number 09−5093 (#281) (Re: 281 Notice of Appeal to Circuit Court, ) (sam, Dpty Clk) (Entered: 06/22/2009)
284 APPEAL FEES Paid in Full (Re: 281 Notice of Appeal to Circuit Court, ) by Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr,

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06/24/2009 06/24/2009 06/24/2009 06/25/2009 06/26/2009
06/29/2009 07/01/2009 07/02/2009 07/06/2009 07/06/2009 07/06/2009

Howard H Hendrick (sjm, Dpty Clk) (Entered: 06/22/2009)
285 Opposed MOTION to Stay Discovery on Class Issues Pending Resolution of Appeal and Brief in Support by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) (Entered: 06/24/2009)
286 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Conference (Re: 279 Minute Order, Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion for Hearing ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 06/24/2009)
287 BRIEF in Support of Motion (Re: 286 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling ConferenceOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Conference ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 06/24/2009)
288 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): ( Responses due by 7/2/2009, Replies due by 7/6/2009, Motion Hearing set for 7/8/2009 at 01:30 PM before Judge Gregory K Frizzell) (Re: 286 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling ConferenceOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Conference ) (hbo, Dpty Clk) (Entered: 06/25/2009)
289 MINUTE ORDER by Judge Gregory K Frizzell (Time Change only, Court will address the motion to reset first, scheduling conference to follow if necessary), setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 7/8/2009 at 09:30 AM before Judge Gregory K Frizzell) (Re: 286 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling ConferenceOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Conference ) (hbo, Dpty Clk) (Entered: 06/26/2009)
290 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 7/8/2009 at 09:30 AM before Judge Gregory K Frizzell) (Re: 285 Opposed MOTION to Stay Discovery on Class Issues Pending Resolution of Appeal and Brief in Support ) (hbo, Dpty Clk) (Entered: 06/29/2009)
291 RESPONSE in Opposition to Motion (Re: 285 Opposed MOTION to Stay Discovery on Class Issues Pending Resolution of Appeal and Brief in Support ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 07/01/2009)
292 RESPONSE in Opposition to Motion (Re: 286 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling ConferenceOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Conference ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (Dorwart, Frederic) (Entered: 07/02/2009)
293 Unopposed MOTION for Extension of Time to Respond to Motion (Re: 280 MOTION for Protective Order AND BRIEF IN SUPPORT ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (DeMuro, Paul) (Entered: 07/06/2009)
294 ORDER by Magistrate Judge Paul J Cleary ; setting/resetting deadline(s)/hearing(s): ( Responses due by 7/10/2009); granting 293 Motion for Extension of Time to Respond to Motion (Re: 280 MOTION for Protective Order AND BRIEF IN SUPPORT ) (jcm, Dpty Clk) (Entered: 07/06/2009)
295 TRANSCRIPT ORDER FORM (Transcripts are not necessary or are already on file ) (Re: 281 Notice of Appeal to Circuit Court, ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 07/06/2009)

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07/06/2009 07/06/2009 07/08/2009
07/10/2009 07/13/2009
07/21/2009 07/22/2009 07/23/2009 07/28/2009 08/04/2009 08/07/2009

296 REPLY to Response to Motion (Re: 285 Opposed MOTION to Stay Discovery on Class Issues Pending Resolution of Appeal and Brief in Support ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Bingham, Donald) (Entered: 07/06/2009)
297 REPLY to Response to Motion (Re: 286 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling ConferenceOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Conference ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) (Entered: 07/06/2009)
298 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Motion Hearing held on 7/8/2009 ; striking/terminating deadline(s)/Hearing(s); staying discovery; granting 261 Motion for Summary Judgment; granting 285 Motion to Stay; denying 286 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 286 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling ConferenceOpposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Conference, 261 MOTION for Summary Judgment Against Plaintiff C.S., 285 Opposed MOTION to Stay Discovery on Class Issues Pending Resolution of Appeal and Brief in Support ) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 07/08/2009)
299 RESPONSE in Opposition to Motion (Re: 280 MOTION for Protective Order AND BRIEF IN SUPPORT ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (DeMuro, Paul) (Entered: 07/10/2009)
300 TRANSCRIPT of Proceedings (Unredacted) of motion hearing held on 07/08/2009 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−51). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 298 Minutes of Motion Hearing, Striking/Terminating Deadline(s)/Hearing(s), Staying Discovery, Ruling on Motion for Summary Judgment, Ruling on Motion to Stay, Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s)) (grd, Crt Rptr) Modified on 10/14/2009 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 07/13/2009)
301 CLERK'S RECORD on Appeal Sent to Circuit Court (Re: 281 Notice of Appeal to Circuit Court, ) (s−srb, Dpty Clk) (Entered: 07/21/2009)
302 MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (De Simone, Donna) (Entered: 07/22/2009)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 302 MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] ) (lml, Dpty Clk) (Entered: 07/23/2009)
303 REPORT Plaintiff Children's Statement in Response to the Court's Inquiry Regarding Religious Foster Care Institutions and Agencies by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 07/28/2009)
304 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 302 MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] ) (hbo, Dpty Clk) (Entered: 08/04/2009)
305 MOTION for Extension of Time to Respond to Motion (Re: 302 MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) (Entered: 08/07/2009)

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08/10/2009
08/17/2009 08/28/2009
11/06/2009 11/09/2009 11/09/2009 11/10/2009 11/10/2009 11/10/2009 11/11/2009 11/11/2009 11/13/2009 11/24/2009 11/25/2009 11/27/2009 11/27/2009

306 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Responses due by 8/17/2009); granting 305 Motion for Extension of Time to Respond to Motion (Re: 302 MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] ) (jcm, Dpty Clk) (Entered: 08/10/2009)
307 RESPONSE in Opposition to Motion (Re: 302 MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] ) by JP, RJ, GC, KT, DG, CS, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 08/17/2009)
308 REPLY to Response to Motion (Re: 302 MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] MOTION for Sanctions For Noncompliance With Court's Order [Dkt. 249] ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (De Simone, Donna) (Entered: 08/28/2009)
309 MOTION to Withdraw Attorney(s) by C Brad Henry (Everest, Tricia) (Entered: 11/06/2009)
310 ORDER by Judge Gregory K Frizzell ; terminating attorney Tricia Louise Everest ; granting 309 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 11/09/2009)
311 Unopposed MOTION to Seal Document Certain Exhibits in Support of Plaintiffs' forthcoming Motion to Compel by JP, RJ, GC, KT, DG, CS, JB, AP, JA (Dorwart, Frederic) Modified on 11/10/2009 to remove filers DG and CS as they were not named as filers in the pleading (tjc, Dpty Clk). (Entered: 11/09/2009)
312 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 311 Unopposed MOTION to Seal Document Certain Exhibits in Support of Plaintiffs' forthcoming Motion to Compel ) (hbo, Dpty Clk) (Entered: 11/10/2009)
NOTICE of Docket Entry Modification; Error: Filers was selected that was not named in the pleading; Correction: Edited docket text to delete filers not named in the pleading (Re: 311 Unopposed MOTION to Seal Document Certain Exhibits in Support of Plaintiffs' forthcoming Motion to Compel ) (tjc, Dpty Clk) (Entered: 11/10/2009)
313 ORDER by Magistrate Judge Frank H McCarthy ; granting 311 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 11/10/2009)
314 SEALED MOTION (Dorwart, Frederic) (Entered: 11/11/2009)
315 MOTION to Compel and Brief in Support (redacted version) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) Modified on 11/13/2009 to seal Exhibit A and Exhbiit B (s−srb, Dpty Clk). (Entered: 11/11/2009)
316 ERRATA/CORRECTION (Re: 315 MOTION to Compel and Brief in Support (redacted version) ) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 11/13/2009)
317 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 314 SEALED MOTION ) (JLE, Chambers) (Entered: 11/24/2009)
318 Unopposed MOTION to Seal Document Exhibits Designated "Confidential" in Response to Dkt. 314 by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (De Simone, Donna) (Entered: 11/25/2009)
319 SEALED UNREDACTED VERSION per Local Rule 5.3(b) (De Simone, Donna) (Entered: 11/27/2009)
320 RESPONSE in Opposition to Motion (Re: 314 SEALED MOTION, 315 MOTION to Compel and Brief in Support (redacted version) ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 67 of 110

11/30/2009
12/01/2009 12/11/2009 02/08/2010 02/12/2010 02/15/2010
02/16/2010
02/16/2010 02/18/2010 03/02/2010 03/05/2010
03/08/2010
03/08/2010
03/10/2010 03/23/2010 03/23/2010

(De Simone, Donna) (Entered: 11/27/2009)
321 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 318 Unopposed MOTION to Seal Document Exhibits Designated "Confidential" in Response to Dkt. 314 ) (hbo, Dpty Clk) (Entered: 11/30/2009)
322 ORDER by Magistrate Judge Frank H McCarthy ; granting 318 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 12/01/2009)
323 REPLY to Response to Motion (Re: 314 SEALED MOTION, 315 MOTION to Compel and Brief in Support (redacted version) ) by JP, RJ, GC, KT, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 12/11/2009)
324 DECISION from Circuit Court affirming the Decision of the District Court (awaiting mandate) (Re: 281 Notice of Appeal to Circuit Court, ) (s−srb, Dpty Clk) (Entered: 02/08/2010)
325 MOTION for Hearing for Scheduling Conference by JP, RJ, GC, KT, JB, AP, JA (Dorwart, Frederic) Modified on 2/16/2010 to correct title of event (lml, Dpty Clk). (Entered: 02/12/2010)
326 ATTORNEY APPEARANCE by David Phillip Page on behalf of Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Page, David) (Entered: 02/15/2010)
NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Motion to Accelerate/Extend/Reset Hearings/Deadlines); Correction: Edited docket text to reflect correct event (Re: 325 MOTION for Hearing for Scheduling Conference ) (lml, Dpty Clk) (Entered: 02/16/2010)
327 MOTION for Attorney(s) Patrick S. Almonrode to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000665728) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 02/16/2010)
328 MINUTE ORDER by Judge Gregory K Frizzell ; granting 327 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 02/18/2010)
329 MANDATE from Circuit Court (Re: 281 Notice of Appeal to Circuit Court, 324 Decision from Circuit Court ) (sam, Dpty Clk) (Entered: 03/02/2010)
330 RESPONSE in Opposition to Motion (Re: 325 MOTION for Hearing for Scheduling Conference ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (Bingham, Donald) Modified on 3/8/2010 to change text to reflect correct event (sac, Dpty Clk). (Entered: 03/05/2010)
NOTICE of Docket Entry Modification; Error: wrong event selected (Reply to Response to Motion); Correction: changed text to reflect correct event (Response In Opposition to Motion) (Re: 330 Reply to Response to Motion, ) (sac, Dpty Clk) (Entered: 03/08/2010)
331 MINUTE ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Scheduling Conference set for 3/26/2010 at 10:30 AM before Judge Gregory K Frizzell); granting 325 Motion for Hearing (hbo, Dpty Clk) (Entered: 03/08/2010)
332 NOTICE (Re: 315 MOTION to Compel and Brief in Support (redacted version) ) by JP, RJ, GC, KT, JB, AP, JA (Dorwart, Frederic) (Entered: 03/10/2010)
333 Unopposed MOTION to Seal Document Forthcoming Motion to Compel and Supporting Exhibits by JP, RJ, GC, KT, JB, AP, JA (Wiltsek, Gena) (Entered: 03/23/2010)
334 Unopposed MOTION to Withdraw Attorney(s) Stephen Cortes by Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 03/23/2010)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 68 of 110

03/23/2010 03/24/2010 03/24/2010 03/24/2010 03/24/2010 03/24/2010 03/25/2010 03/25/2010
03/26/2010 03/26/2010
03/26/2010
03/26/2010
03/28/2010
03/29/2010 04/06/2010 04/07/2010

335 MINUTE ORDER by Judge Gregory K Frizzell ; terminating attorney Stephen Louis Cortes ; granting 334 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 03/23/2010)
336 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 302 Motion for Sanctions (jcm, Dpty Clk) (Entered: 03/24/2010)
337 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 314 Sealed Motion (jcm, Dpty Clk) (Entered: 03/24/2010)
338 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 280 Motion for Protective Order (jcm, Dpty Clk) (Entered: 03/24/2010)
339 MOTION to Compel (redacted version) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 03/24/2010)
340 SEALED UNREDACTED VERSION of Dkt# 339 (Dorwart, Frederic) Modified on 3/25/2010 to correct title of event (lml, Dpty Clk). (Entered: 03/24/2010)
341 ORDER by Magistrate Judge Frank H McCarthy ; granting 333 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 03/25/2010)
342 Unopposed MOTION for Leave to File Supplemental Brief in Response to Plaintiffs' Motion for a Scheduling Conference (Re: 325 MOTION for Hearing for Scheduling Conference ) by Ronald L Mercer, Michael L Peck, Garoldine Webb, Howard H Hendrick, Jay Dee Chase, Patrice Dills Douglas, George E Young, Sr, Aneta F Wilkinson, Richard L DeVaughn (Bingham, Donald) Modified on 3/26/2010 to add additional filers and remove incorrect filers (tjc, Dpty Clk). (Entered: 03/25/2010)
343 ORDER by Judge Gregory K Frizzell ; granting 342 Motion for Leave to File Document(s) (Re: 331 Minute Order, Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion for Hearing ) (hbo, Dpty Clk) (Entered: 03/26/2010)
344 Supplemental RESPONSE (Re: 325 MOTION for Hearing for Scheduling Conference ) by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 03/26/2010)
NOTICE of Docket Entry Modification; Error: Not all filers were selected when filed and incorrect filers were selected; Correction: Edited docket text to add filers and remove incorrect filers (Re: 342 Unopposed MOTION for Leave to File Supplemental Brief in Response to Plaintiffs' Motion for a Scheduling Conference ) (tjc, Dpty Clk) (Entered: 03/26/2010)
346 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Status Hearing held on 3/26/2010, setting/resetting deadline(s)/hearing(s): ( Status Hearing set for 7/7/2010 at 02:30 PM before Judge Gregory K Frizzell) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 03/29/2010)
345 Unopposed MOTION to Substitute Party Defendant by Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 03/28/2010)
347 ORDER by Judge Gregory K Frizzell ; adding party Steven Dow terminating party Patrice Dills Douglas ; granting 345 Motion to Substitute Party (hbo, Dpty Clk) (Entered: 03/29/2010)
348 MOTION to Compel by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 04/06/2010)
349 TRANSCRIPT of Proceedings (Unredacted) of status hearing held on 03/26/2010 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−55). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 346 Minutes of Status Hearing,

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 69 of 110

04/09/2010 04/09/2010 04/12/2010 04/12/2010 04/12/2010 04/12/2010 04/15/2010 04/15/2010 04/15/2010
04/16/2010
04/16/2010 04/19/2010 04/19/2010 04/19/2010 04/22/2010

Setting/Resetting Deadline(s)/Hearing(s)) (grd, Crt Rptr) Modified on 7/6/2010 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 04/07/2010)
350 Joint REPORT of Agreed Discovery by JP, RJ, GC, Steven Dow, KT, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick, JB, AP, JA (Dorwart, Frederic) (Entered: 04/09/2010)
351 REPORT on Case Management by JP, RJ, GC, KT, JB, AP, JA (Dorwart, Frederic) (Entered: 04/09/2010)
352 Unopposed MOTION to Seal Document by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (De Simone, Donna) (Entered: 04/12/2010)
353 MINUTE ORDER by Judge Gregory K Frizzell The six matters identified by Plaintiffs in its Case Management Report (Dkt. #351) are hereby referred to United States Magisrate Judge Frank H. McCarthy (Re: 351 Report ) (hbo, Dpty Clk) (Entered: 04/12/2010)
354 RESPONSE in Opposition to Motion (Re: 339 MOTION to Compel (redacted version) ) by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (De Simone, Donna) (Entered: 04/12/2010)
355 SEALED UNREDACTED VERSION of Dkt # 354 per Local Rule 5.3(b) (De Simone, Donna) (Entered: 04/12/2010)
356 First AMENDED ANSWER (Re: 227 Answer, 2 Complaint ) by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) (Entered: 04/15/2010)
357 SEALED UNREDACTED VERSION of Dkt # 356 per Local Rule 5.3(b) (Bingham, Donald) (Entered: 04/15/2010)
358 Unopposed MOTION to Seal Document Dkt 357, OKDHS Defendants' Unredacted First Amended Answer (Re: 357 SEALED UNREDACTED VERSION of Dkt # 356 per Local Rule 5.3(b)by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) Modified on 4/16/2010 to add link to Doc # 357 (tjc, Dpty Clk). (Entered: 04/15/2010)
359 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Status Hearing held on 4/16/2010, setting/resetting deadline(s)/hearing(s): Courtroom #1, 3rd floor ( Miscellaneous Hearing set for 5/18/2010 at 09:30 AM before Magistrate Judge Frank H McCarthy) (Court Reporter: 10−FHM−01B) (jcm, Dpty Clk) (Entered: 04/16/2010)
360 ORDER by Judge Gregory K Frizzell ; granting 358 Motion to Seal Document(s) (Re: 357 Sealed Unredacted Version per Local Rule 5.3(b) ) (hbo, Dpty Clk) (Entered: 04/16/2010)
361 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 352 Unopposed MOTION to Seal Document ) (hbo, Dpty Clk) (Entered: 04/19/2010)
362 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 352 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 04/19/2010)
363 MOTION Regarding Unresolved Issues Pertaining to Plaintiffs' Experts Review of DHS's Case Files by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 04/19/2010)
364 MOTION to Withdraw Attorney(s) Andrew Bauer, Carly Henek and R. Nadine Fontaine by JP, RJ, GC, KT, JB, AP, JA (Dorwart, Frederic) (Entered: 04/22/2010)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 70 of 110

04/22/2010 04/22/2010 04/23/2010 04/23/2010 04/23/2010 04/23/2010
04/27/2010 04/27/2010 04/28/2010 04/28/2010 04/28/2010 04/30/2010
05/03/2010
05/03/2010 05/03/2010
05/04/2010

365 MOTION for Attorney(s) Angela Vicari to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000694444) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 04/22/2010)
366 MOTION for Attorney(s) John Cahalan to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000694451) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 04/22/2010)
367 MINUTE ORDER by Judge Gregory K Frizzell ; terminating attorney Carly Henek; Andrew Belkin Bauer and Rose Nadine Fontaine ; granting 364 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 04/23/2010)
368 ORDER by Judge Gregory K Frizzell ; granting 365 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 04/23/2010)
369 ORDER by Judge Gregory K Frizzell ; granting 366 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 04/23/2010)
370 RESPONSE in Opposition to Motion (Re: 348 MOTION to Compel ) by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (De Simone, Donna) (Entered: 04/23/2010)
371 Unopposed MOTION to Seal Document by JP, RJ, GC, KT, JB, AP, JA (Dorwart, Frederic) (Entered: 04/27/2010)
372 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 371 Unopposed MOTION to Seal Document ) (hbo, Dpty Clk) (Entered: 04/27/2010)
373 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 371 Motion to Seal Document(s) (Re: 348 MOTION to Compel ) (jcm, Dpty Clk) (Entered: 04/28/2010)
374 REPLY to Response to Motion (Re: 339 MOTION to Compel ) by JP, RJ, GC, KT, JB, AP, JA ; (Dorwart, Frederic) Modified on 4/29/2010 to change link to Doc # 339 and remove link to Doc # 348 (tjc, Dpty Clk). (Entered: 04/28/2010)
375 SEALED UNREDACTED VERSION of Dkt # 374 per Local Rule 5.3(b) (Dorwart, Frederic) (Entered: 04/28/2010)
376 Unopposed MOTION for Leave to Exceed Page Limitation For Response Brief by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Bingham, Donald) (Entered: 04/30/2010)
377 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 376 Unopposed MOTION for Leave to Exceed Page Limitation For Response Brief, 363 MOTION Regarding Unresolved Issues Pertaining to Plaintiffs' Experts Review of DHS's Case Files ) (hbo, Dpty Clk) (Entered: 05/03/2010)
378 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 376 Motion for Leave to Exceed Page Limitation (jcm, Dpty Clk) (Entered: 05/03/2010)
379 RESPONSE in Opposition to Motion (Re: 363 MOTION Regarding Unresolved Issues Pertaining to Plaintiffs' Experts Review of DHS's Case Files ) by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick ; (With attachments) (Bingham, Donald) Modified on 5/4/2010 to seal Exhibit 8 as document was unredacted; counsel will file the redacted version using the Errata/Correction event (s−srl, Dpty Clk). (Entered: 05/03/2010)
380 ERRATA/CORRECTION (Re: 379 Response in Opposition to Motion,, ) by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) (Entered: 05/04/2010)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 71 of 110

05/10/2010 05/11/2010 05/18/2010
05/19/2010 05/21/2010 05/24/2010 05/24/2010 05/25/2010
06/15/2010 06/25/2010 06/25/2010 06/25/2010 06/25/2010 06/28/2010 06/30/2010 06/30/2010

381 REPLY to Response to Motion (Re: 363 MOTION Regarding Unresolved Issues Pertaining to Plaintiffs' Experts Review of DHS's Case Files ) by JP, RJ, GC, KT, JB, AP, JA ; (Wiltsek, Gena) (Entered: 05/10/2010)
382 REPLY to Response to Motion (Re: 348 MOTION to Compel ) by JP, RJ, GC, KT, JB, AP, JA ; (With attachments) (Dorwart, Frederic) (Entered: 05/11/2010)
383 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 5/18/2010, striking/terminating deadline(s)/Hearing(s), taking motion(s) under advisement (Re: 339 MOTION to Compel (redacted version), 363 MOTION Regarding Unresolved Issues Pertaining to Plaintiffs' Experts Review of DHS's Case Files, 348 MOTION to Compel ) (Court Reporter: C1) (jcm, Dpty Clk) (Entered: 05/18/2010)
384 OPINION AND ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): ( Status Report due by 6/30/2010, Status Hearing set for 7/1/2010 at 09:30 AM before Magistrate Judge Frank H McCarthy) (jcm, Dpty Clk) (Entered: 05/19/2010)
385 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 339 Motion to Compel; granting in part and denying in part 348 Motion to Compel (jcm, Dpty Clk) (Entered: 05/21/2010)
386 MOTION for Attorney(s) Mariam F. Ingber to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 10850000000000708252) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 05/24/2010)
387 MINUTE ORDER by Judge Gregory K Frizzell ; granting 386 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 05/24/2010)
388 TRANSCRIPT of Proceedings (Unredacted) of motion hearing held on 05/18/2010 before Magistrate Judge Frank H McCarthy (Court Reporter: Glen Dorrough) (Pages: 1−89). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 383 Minutes of Motion Hearing, Striking/Terminating Deadline(s)/Hearing(s), Taking Motion(s) Under Advisement) (grd, Crt Rptr) Modified on 8/24/2010 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 05/25/2010)
389 Supplemental RESPONSE (Re: 339 MOTION to Compel (redacted version) ) by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (De Simone, Donna) (Entered: 06/15/2010)
390 Unopposed MOTION to Seal Document by JP, RJ, GC, KT, JB, AP, JA (Dorwart, Frederic) (Entered: 06/25/2010)
391 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 390 Unopposed MOTION to Seal Document ) (hbo, Dpty Clk) (Entered: 06/25/2010)
392 SUPPLEMENT (Re: 374 Reply to Response to Motion ) by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 06/25/2010)
393 SEALED UNREDACTED VERSION of Dkt # 392 per Local Rule 5.3(b) (Dorwart, Frederic) (Entered: 06/25/2010)
394 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 390 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 06/28/2010)
395 STATUS REPORT by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 06/30/2010)
396 STATUS REPORT by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Page, David) (Entered: 06/30/2010)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 72 of 110

07/01/2010 07/07/2010 07/17/2010
07/17/2010
07/20/2010 07/20/2010 08/05/2010 08/06/2010 08/06/2010 08/10/2010

397 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Status Hearing held on 7/1/2010, striking/terminating deadline(s)/Hearing(s), setting/resetting deadline(s)/hearing(s): Courtroom #2, 3rd floor ( Status Report due by 8/6/2010, Status Hearing set for 8/10/2010 at 09:30 AM before Magistrate Judge Frank H McCarthy) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 07/01/2010)
398 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Status Hearing held on 7/7/2010, setting/resetting deadline(s)/hearing(s): ( Pretrial Conference set for 9/16/2011 at 09:30 AM before Judge Gregory K Frizzell, Nonjury Trial set for 10/17/2011 at 09:30 AM before Judge Gregory K Frizzell) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 07/08/2010)
399 TRANSCRIPT of Proceedings (Unredacted) of status hearing held on 07−01−2010 before Magistrate Judge Frank H McCarthy (Court Reporter: Glen Dorrough) (Pages: 1−39). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 397 Minutes of Status Hearing, Striking/Terminating Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s)) (grd, Crt Rptr) Modified on 10/20/2010 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 07/17/2010)
400 TRANSCRIPT of Proceedings (Unredacted) of status hearing held on 07−07−2010 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−41). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 398 Minutes of Status Hearing, Setting/Resetting Deadline(s)/Hearing(s)) (grd, Crt Rptr) Modified on 10/20/2010 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 07/17/2010)
401 SCHEDULING ORDER by Judge Gregory K Frizzell, setting/resetting scheduling order date(s): ( Discovery due by 6/21/2011, Dispositive Motions due by 7/15/2011, Proposed Pretrial Order due by 9/9/2011, Pretrial Conference set for 9/16/2011 at 09:30 AM before Judge Gregory K Frizzell, Nonjury Trial set for 10/17/2011 at 09:30 AM before Judge Gregory K Frizzell), setting/resetting deadline(s)/hearing(s): ( Miscellaneous Hearing set for 9/1/2011 at 09:30 AM before Judge Gregory K Frizzell) (hbo, Dpty Clk) (Entered: 07/20/2010)
402 SCHEDULING ORDER by Judge Gregory K Frizzell Corrected Amended (Re: 401 Scheduling Order, Setting/Resetting Scheduling Order Date(s), Setting/Resetting Deadline(s)/Hearing(s),, Setting/Resetting Scheduling Order Date(s), Setting/Resetting Deadline(s)/Hearing(s),, Setting/Resetting Scheduling Order Date(s), Setting/Resetting Deadline(s)/Hearing(s) ) (hbo, Dpty Clk) (Entered: 07/20/2010)
403 Supplemental RESPONSE (Re: 339 MOTION to Compel (redacted version) ) by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (De Simone, Donna) (Entered: 08/05/2010)
404 STATUS REPORT by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Ingber, Miriam) (Entered: 08/06/2010)
405 Second STATUS REPORT by Steven Dow, C Brad Henry, Richard L DeVaughn, Ronald L Mercer, Wayne Cunningham, Jay Dee Chase, Patrice Dills Douglas, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (Page, David) (Entered: 08/06/2010)
406 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Status Hearing held on 8/10/2010, striking/terminating deadline(s)/Hearing(s), setting/resetting deadline(s)/hearing(s): ( Status Report due by 9/10/2010) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 08/10/2010)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 73 of 110

08/25/2010
09/09/2010 09/09/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/16/2010 09/20/2010 09/20/2010 10/01/2010 10/04/2010 10/07/2010 10/08/2010
10/08/2010

407 TRANSCRIPT of Proceedings (Unredacted) of status hearing held on 08/10/10 before Magistrate Judge Frank H McCarthy (Court Reporter: Glen Dorrough) (Pages: 1−15). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 406 Minutes of Status Hearing, Striking/Terminating Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s)) (grd, Crt Rptr) Modified on 12/7/2010 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 08/25/2010)
408 Unopposed MOTION to Seal Document Exhibit to Plaintiffs' Status Report by JP, RJ, GC, KT, JB, AP, JA (Dorwart, Frederic) (Entered: 09/09/2010)
409 ORDER by Magistrate Judge Frank H McCarthy ; granting 408 Motion to Seal Document(s) (MLC, Chambers) (Entered: 09/09/2010)
410 STATUS REPORT by JP, RJ, GC, KT, JB, AP, JA (With attachments) (Dorwart, Frederic) (Entered: 09/10/2010)
411 SEALED DOCUMENT (Dorwart, Frederic) (Entered: 09/10/2010)
412 MOTION to Compel Complete and Responsive Answers to Interrogatories and Supporting Brief by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Nance, Robert) (Entered: 09/10/2010)
413 STATUS REPORT by Steven Dow, Richard L DeVaughn, Ronald L Mercer, Jay Dee Chase, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, Howard H Hendrick (With attachments) (Bingham, Donald) (Entered: 09/10/2010)
414 Supplemental STATUS REPORT by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (De Simone, Donna) (Entered: 09/16/2010)
415 Opposed MOTION for Hearing Status Hearing (Re: 410 Status Report, 413 Status Report ) by AP, GC, JA, JB, JP, KT, RJ (Ingber, Miriam) (Entered: 09/20/2010)
416 MINUTE ORDER by Judge Gregory K Frizzell Defendants shall file a response to plaintiffs' Contested Application to Schedule Status Hearing [#415] on or before October 4, 2010. (GKF1, Chambers) (Entered: 09/20/2010)
417 RESPONSE in Opposition to Motion (Re: 412 MOTION to Compel Complete and Responsive Answers to Interrogatories and Supporting Brief ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) (Entered: 10/01/2010)
418 RESPONSE in Opposition to Motion (Re: 415 Opposed MOTION for Hearing Status Hearing ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (Bingham, Donald) (Entered: 10/04/2010)
419 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Judge McCarthy (Re: 415 Opposed MOTION for Hearing Status Hearing ) (JLE, Chambers) (Entered: 10/07/2010)
420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) Modified on 10/12/2010; This is a two−part motion, see Document # 422 for second event (tjc, Dpty Clk). (Entered: 10/08/2010)
422 MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (tjc, Dpty Clk) (Entered: 10/12/2010)

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10/08/2010
10/11/2010
10/12/2010
10/13/2010 10/15/2010
10/20/2010 10/20/2010 10/20/2010 10/29/2010
10/29/2010
11/01/2010 11/03/2010 11/09/2010 11/10/2010

***Motion(s) Referred to Magistrate Judge McCarthy (Re: 420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories, 422 MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) ) (tjc, Dpty Clk) (Entered: 10/12/2010)
421 MOTION to Compel Complete and Candid Responses to Second Set of Interrogatories of Defendant De Vaughn by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) (Entered: 10/11/2010)
NOTICE of Docket Entry Modification; Error: Document # 420 is a two−part motion, but not all parts were filed; Correction: Filed the remaining motion part as Document # 422 (Re: 420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories ) (tjc, Dpty Clk) (Entered: 10/12/2010)
423 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 415 Motion for Hearing (MLC, Chambers) (Entered: 10/13/2010)
424 REPLY to Response to Motion (Re: 412 MOTION to Compel Complete and Responsive Answers to Interrogatories and Supporting Brief ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 10/15/2010)
425 Third MOTION to Compel by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 10/20/2010)
426 MOTION for Sanctions by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 10/20/2010)
427 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 426 MOTION for Sanctions ) (hbo, Dpty Clk) (Entered: 10/20/2010)
428 RESPONSE in Opposition to Motion (Re: 420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories, 422 MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) (Entered: 10/29/2010)
429 Amended RESPONSE in Opposition to Motion (Re: 420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories, 422 MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) (Entered: 10/29/2010)
430 RESPONSE in Opposition to Motion (Re: 421 MOTION to Compel Complete and Candid Responses to Second Set of Interrogatories of Defendant De Vaughn ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) (Entered: 11/01/2010)
431 Fourth MOTION to Compel by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 11/03/2010)
432 Fifth MOTION to Compel by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) Modified on 11/30/2010−WITHDRAWN PER MINUTE ORDER # 443 (lml, Dpty Clk). (Entered: 11/09/2010)
433 RESPONSE in Opposition to Motion (Re: 426 MOTION for Sanctions ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Koepsel, Kristopher) (Entered: 11/10/2010)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 75 of 110

11/10/2010
11/10/2010
11/15/2010
11/16/2010 11/16/2010 11/22/2010 11/23/2010 11/23/2010 11/24/2010 11/29/2010 11/29/2010 12/01/2010

434 REPLY to Response to Motion (Re: 420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories, 422 MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 11/10/2010)
435 RESPONSE in Opposition to Motion (Re: 425 Third MOTION to Compel ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (De Simone, Donna) (Entered: 11/10/2010)
436 REPLY to Response to Motion (Re: 421 MOTION to Compel Complete and Candid Responses to Second Set of Interrogatories of Defendant De Vaughn ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 11/15/2010)
437 ERRATA/CORRECTION (Re: 435 Response in Opposition to Motion, ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (De Simone, Donna) (Entered: 11/16/2010)
438 RESPONSE in Opposition to Motion (Re: 431 Fourth MOTION to Compel ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (Garren, Richard) (Entered: 11/16/2010)
439 ATTORNEY APPEARANCE by Dorothy Sharon Gentry on behalf of Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Gentry, Dorothy) (Entered: 11/22/2010)
440 REPLY to Response to Motion (Re: 426 MOTION for Sanctions ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) (Entered: 11/23/2010)
441 REPLY to Response to Motion (Re: 425 Third MOTION to Compel ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) (Entered: 11/23/2010)
442 MOTION to Withdraw Document(s) (Re: 432 Fifth MOTION to Compel ) by AP, GC, JA, JB, JP, KT, RJ (Ingber, Miriam) Modified on 11/29/2010 to change text to reflect correct event (sac, Dpty Clk). (Entered: 11/24/2010)
NOTICE of Docket Entry Modification; Error: wrong event selected (Notice); Correction: changed text to reflect correct event (Motion to Withdraw Document) (Re: 442 MOTION to Withdraw Document(s) ) (sac, Dpty Clk) (Entered: 11/29/2010)
443 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; striking/withdrawing document(s); granting 442 Motion to Withdraw Documents(s) (Re: 432 Fifth MOTION to Compel ) (Documents Terminated: 432 Fifth MOTION to Compel ) (crp, Dpty Clk) (Entered: 11/29/2010)
444 MINUTE ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): (Magistrate Courtroom No. 1, Third Floor) ( Motion Hearing set for 12/17/2010 at 09:30 AM before Magistrate Judge Frank H McCarthy) (Re: 431 Fourth MOTION to Compel, 421 MOTION to Compel Complete and Candid Responses to Second Set of Interrogatories of Defendant De Vaughn, 426 MOTION for Sanctions, 420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories, 422 MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ), 425 Third MOTION to Compel, 412 MOTION to Compel Complete and Responsive Answers to Interrogatories and Supporting Brief ) (crp, Dpty Clk) (Entered: 12/01/2010)

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12/03/2010
12/03/2010 12/03/2010
12/08/2010 12/13/2010 12/15/2010 12/16/2010 12/17/2010 12/17/2010
12/17/2010 12/21/2010

445 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 441 Reply to Response to Motion, 425 Third MOTION to Compel, 435 Response in Opposition to Motion, 444 Minute Order, Setting/Resetting Deadline(s)/Hearing(s),, Setting/Resetting Deadline(s)/Hearing(s),, Setting/Resetting Deadline(s)/Hearing(s),, Setting/Resetting Deadline(s)/Hearing(s) ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (De Simone, Donna) (Entered: 12/03/2010)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 445 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s)Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s)Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) (crp, Dpty Clk) (Entered: 12/03/2010)
446 MINUTE ORDER by Magistrate Judge Frank H McCarthy the Third Motion to Compel (dkt. # 425) ONLY is rescheduled from 12/17/10 to 12/15/10. All other motions previously scheduled for hearing on 12/17/10 will remain as set ; setting/resetting deadline(s)/hearing(s): (Magistrate Courtroom No. 1, Third Floor) ( Motion Hearing set for 12/15/2010 at 03:30 PM before Magistrate Judge Frank H McCarthy); granting 445 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 425 Third MOTION to Compel ) (crp, Dpty Clk) (Entered: 12/03/2010)
447 REPLY to Response to Motion (Re: 431 Fourth MOTION to Compel ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 12/08/2010)
448 Sixth MOTION to Compel by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 12/13/2010)
449 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 12/15/2010 ; granting 425 Motion to Compel (Re: 425 Third MOTION to Compel ) (Court Reporter: C1) (jcm, Dpty Clk) (Entered: 12/15/2010)
450 MOTION to Strike Errata Sheets by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 12/16/2010)
451 ORDER by Magistrate Judge Frank H McCarthy ; granting 431 Motion to Compel (jcm, Dpty Clk) (Entered: 12/17/2010)
452 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 12/17/2010 ; striking/terminating deadline(s)/Hearing(s); taking motion(s) under advisement; denying 412 Motion to Compel; granting 420 Motion to Clarify; granting 421 Motion to Compel; granting 422 Motion for Miscellaneous Relief (Re: 420 MOTION to Clarify That Each Defendant May Serve 25 Interrogatories Or Alternative Motion for Leave To Serve Addditional Interrogatories, 422 MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ) MOTION for Leave to Serve Additional Interrogatories (submitted as part of Doc # 420 ), 421 MOTION to Compel Complete and Candid Responses to Second Set of Interrogatories of Defendant De Vaughn, 426 MOTION for Sanctions, 412 MOTION to Compel Complete and Responsive Answers to Interrogatories and Supporting Brief ) (Court Reporter: C1) (jcm, Dpty Clk) (Entered: 12/17/2010)
453 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 450 MOTION to Strike Errata Sheets ) (JLE, Chambers) (Entered: 12/17/2010)
454 TRANSCRIPT of Proceedings (Unredacted) of Motion Hearing held on 12−15−2010 before Magistrate Judge Frank H McCarthy (Court Reporter: Greg Bloxom) (Pages: 1 − 31). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 449 Minutes of Motion Hearing, Ruling on Motion to Compel) (tgb, Crt Rptr) Modified on 3/21/2011 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 12/21/2010)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 77 of 110

12/21/2010
12/21/2010 12/21/2010 12/22/2010 12/27/2010 12/27/2010 12/30/2010 01/03/2011 01/03/2011 01/03/2011 01/03/2011 01/04/2011 01/07/2011

455 TRANSCRIPT of Proceedings (Unredacted) of Motion Hearing held on 12−17−2010 before Magistrate Judge Frank H McCarthy (Court Reporter: Greg Bloxom) (Pages: 1 − 60). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 452 Minutes of Motion Hearing, Striking/Terminating Deadline(s)/Hearing(s), Taking Motion(s) Under Advisement, Ruling on Motion to Compel, Ruling on Motion to Clarify, Ruling on Motion for Miscellaneous Relief) (tgb, Crt Rptr) Modified on 3/21/2011 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 12/21/2010)
456 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 1/14/2011); granting 426 Motion for Sanctions (jcm, Dpty Clk) (Entered: 12/21/2010)
457 MOTION to Quash Notices of Deposition and, MOTION for Protective Order and Brief in Support by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) (Entered: 12/21/2010)
458 MOTION to Bifurcate, MOTION for Liability Cut−Off Date by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 12/22/2010)
459 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 448 Sixth MOTION to Compel ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (De Simone, Donna) (Entered: 12/27/2010)
460 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/10/2011, Replies due by 1/24/2011); granting 459 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 448 Sixth MOTION to Compel ) (jcm, Dpty Clk) (Entered: 12/27/2010)
461 MOTION to Withdraw Attorney(s) for Plaintiffs by AP, CS, DG, GC, JA, JB, JP, KT, RJ (Edwards, Joe) (Entered: 12/30/2010)
462 ORDER by Judge Gregory K Frizzell ; terminating attorney Bruce W Day and Joe Earl Edwards ; granting 461 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 01/03/2011)
463 MOTION for Extension of Time to Respond to Motion (Re: 450 MOTION to Strike Errata Sheets ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 01/03/2011)
464 MOTION for Extension of Time to Respond to Motion (Re: 458 MOTION to Bifurcate MOTION for Liability Cut−Off Date ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 01/03/2011)
465 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/17/2011, Replies due by 1/31/2011); granting 464 Motion for Extension of Time to Respond to Motion (Re: 458 MOTION to Bifurcate MOTION for Liability Cut−Off Date ) (hbo, Dpty Clk) (Entered: 01/03/2011)
466 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/14/2011, Replies due by 1/28/2011); granting 463 Motion for Extension of Time to Respond to Motion (Re: 450 MOTION to Strike Errata Sheets ) (jcm, Dpty Clk) (Entered: 01/04/2011)
467 RESPONSE in Opposition to Motion (Re: 457 MOTION to Quash Notices of Deposition and MOTION for Protective Order and Brief in Support ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 01/07/2011)

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01/10/2011 01/14/2011 01/14/2011 01/14/2011 01/17/2011 01/17/2011
01/18/2011 01/18/2011 01/18/2011 01/20/2011 01/24/2011 01/24/2011 01/25/2011 01/25/2011

468 RESPONSE in Opposition to Motion (Re: 448 Sixth MOTION to Compel ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (De Simone, Donna) (Entered: 01/10/2011)
469 Second MOTION for Extension of Time to Respond to Motion (Re: 450 MOTION to Strike Errata Sheets ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 01/14/2011)
470 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 469 Second MOTION for Extension of Time to Respond to Motion ) (hbo, Dpty Clk) (Entered: 01/14/2011)
471 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/18/2011, Replies due by 2/1/2011); granting 469 Motion for Extension of Time to Respond to Motion (Re: 450 MOTION to Strike Errata Sheets ) (MLC, Chambers) (Entered: 01/14/2011)
472 REPLY to Response to Motion (Re: 457 MOTION to Quash Notices of Deposition and MOTION for Protective Order and Brief in Support ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 01/17/2011)
473 Unopposed MOTION for Leave to File Response of OKDHS Defendants to Plaintiffs' Motion for Bifurcation of Proceedings and Liability Cut−Off Date [Dkt. No. 458] (Re: 458 MOTION to Bifurcate MOTION for Liability Cut−Off Date ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Nance, Robert) (Entered: 01/17/2011)
474 ORDER by Judge Gregory K Frizzell ; granting 473 Motion for Leave to File Document(s) (Re: 458 MOTION to Bifurcate MOTION for Liability Cut−Off Date ) (hbo, Dpty Clk) (Entered: 01/18/2011)
475 RESPONSE in Opposition to Motion (Re: 458 MOTION to Bifurcate MOTION for Liability Cut−Off Date ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 01/18/2011)
476 RESPONSE in Opposition to Motion (Re: 450 MOTION to Strike Errata Sheets ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 01/18/2011)
477 ERRATA/CORRECTION (Re: 475 Response in Opposition to Motion, ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) (Entered: 01/20/2011)
478 ATTORNEY APPEARANCE by Stephanie L Theban on behalf of Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Theban, Stephanie) (Entered: 01/24/2011)
479 REPLY to Response to Motion (Re: 448 Sixth MOTION to Compel ) by AP, GC, JA, JB, JP, KT, RJ ; (Ingber, Miriam) (Entered: 01/24/2011)
480 MINUTE ORDER by Court Clerk, directing Stephanie L. Theban to file by February 15, 2011 a Motion for Admission Pro Hac Vice per Local Civil Rule 83.2. Additionally, if you intend to practice in this district in the future and want to become a member of this district, please submit an application for attorney admission. (lal, Dpty Clk) (Entered: 01/25/2011)
481 MINUTE ORDER by Court Clerk, vacating/setting aside order(s) (Re: 480 Minute Order, Directing Attorney to File PHV Motion,, ) (Documents Terminated: 480

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02/01/2011 02/01/2011 02/03/2011 02/11/2011 02/11/2011 02/25/2011 02/28/2011 03/08/2011 03/08/2011 03/09/2011 03/09/2011
03/10/2011
03/10/2011 03/10/2011 03/11/2011

Minute Order, Directing Attorney to File PHV Motion,, ) (lal, Dpty Clk) (Entered: 01/25/2011)
482 REPLY to Response to Motion (Re: 458 MOTION to Bifurcate MOTION for Liability Cut−Off Date ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 02/01/2011)
483 REPLY to Response to Motion (Re: 450 MOTION to Strike Errata Sheets ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) Modified on 2/3/2011 to seal exhibt H as document was filed unredacte;counsel will file the redacted version(ksb, Dpty Clk). (Entered: 02/01/2011)
484 ERRATA/CORRECTION (Re: 483 Reply to Response to Motion, ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 02/03/2011)
485 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 448 Motion to Compel (jcm, Dpty Clk) (Entered: 02/11/2011)
486 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 457 Motion to Quash; granting 457 Motion for Protective Order (jcm, Dpty Clk) (Entered: 02/11/2011)
487 APPEAL of the Magistrate Judge's Order to Magistrate Judge's February 11, 2011 Opinion and Order (Re: 486 Opinion and Order, Ruling on Motion to Quash, Ruling on Motion for Protective Order ) by AP, GC, JA, JB, JP, KT, RJ (Ingber, Miriam) Modified on 2/28/2011 to correct title of event (lml, Dpty Clk). (Entered: 02/25/2011)
NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Objection); Correction: Edited docket text to reflect correct event (Appeal of Magistrate Judge's Order) (Re: 487 APPEAL of the Magistrate Judge ) (lml, Dpty Clk) (Entered: 02/28/2011)
488 RESPONSE (Re: 487 APPEAL of the Magistrate Judge ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Nance, Robert) (Entered: 03/08/2011)
489 ERRATA/CORRECTION (Re: 475 Response in Opposition to Motion, ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) (Entered: 03/08/2011)
490 MOTION to Compel by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Page, David) (Entered: 03/09/2011)
491 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order, MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) (Re: 402 Scheduling Order,,, ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Page, David) (Entered: 03/09/2011)
492 MOTION for Hearing OKDHS DEFENDANTS' MOTION FOR EXPEDITED HEARING (Re: 490 MOTION to Compel ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Theban, Stephanie) (Entered: 03/10/2011)
493 RESPONSE in Opposition to Motion (Re: 492 MOTION for Hearing OKDHS DEFENDANTS' MOTION FOR EXPEDITED HEARING ) by AP, GC, JA, JB, JP, KT, RJ ; (Ingber, Miriam) (Entered: 03/10/2011)
494 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 492 MOTION for Hearing OKDHS DEFENDANTS' MOTION FOR EXPEDITED HEARING ) (hbo, Dpty Clk) (Entered: 03/10/2011)
495 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 491 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION to Accelerate/Extend/Reset

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03/22/2011
03/23/2011 03/23/2011 03/24/2011
03/24/2011
03/30/2011 03/30/2011 04/01/2011 04/05/2011 04/06/2011

Hearing(s)/Deadline(s) Scheduling Order MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) ) (JLE, Chambers) (Entered: 03/11/2011)
496 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): Courtroom #1, 3rd floor ( Motion Hearing set for 4/1/2011 at 09:30 AM before Magistrate Judge Frank H McCarthy); granting 492 Motion for Hearing (Re: 491 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner), 490 MOTION to Compel ) (jcm, Dpty Clk) (Entered: 03/22/2011)
497 OPINION AND ORDER by Judge Gregory K Frizzell ; denying 487 Appeal of Magistrate Judge's Order (hbo, Dpty Clk) (Entered: 03/23/2011)
498 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 496 Minute Order,,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion for Hearing,, ) by AP, GC, JA, JB, JP, KT, RJ (Dorwart, Frederic) (Entered: 03/23/2011)
499 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): Courtroom #1, 3rd floor ( Motion Hearing set for 4/5/2011 at 09:30 AM before Magistrate Judge Frank H McCarthy); granting 498 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 491 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner), 490 MOTION to Compel ) (jcm, Dpty Clk) (Entered: 03/24/2011)
500 ERRATA/CORRECTION (Re: 491 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Theban, Stephanie) (Entered: 03/24/2011)
501 RESPONSE in Opposition to Motion (Re: 490 MOTION to Compel ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 03/30/2011)
502 RESPONSE in Opposition to Motion (Re: 491 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) ) by AP, GC, JA, JB, JP, KT, RJ ; (Ingber, Miriam) (Entered: 03/30/2011)
503 REPLY to Response to Motion (Re: 490 MOTION to Compel ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 04/01/2011)
504 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 4/5/2011, taking motion(s) under advisement (Re: 490 MOTION to Compel, 491 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) Scheduling Order MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) MOTION for additional time to submit rebuttal to plaintiff's expert report (Milner) ) (Court Reporter: C1) (jcm, Dpty Clk) (Entered: 04/05/2011)
505 MOTION to Withdraw Attorney(s) by AP, GC, JA, JB, JP, KT, RJ (Wiltsek, Gena) (Entered: 04/06/2011)

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04/07/2011 04/08/2011
04/08/2011 04/14/2011 04/14/2011 04/14/2011 04/15/2011 04/15/2011 04/18/2011 04/21/2011 04/22/2011 04/25/2011 04/26/2011 04/29/2011

506 ORDER by Judge Gregory K Frizzell ; terminating attorney Jeremiah Lee Frei−Pearson and Gena E Wiltsek ; granting 505 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 04/07/2011)
507 TRANSCRIPT of Proceedings (Unredacted) of Motion Hearing held on 04−05−2011 before Magistrate Judge Frank H McCarthy (Court Reporter: Greg Bloxom) (Pages: 1 − 60). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 504 Minutes of Motion Hearing, Taking Motion(s) Under Advisement) (tgb, Crt Rptr) Modified on 7/7/2011 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 04/08/2011)
508 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 490 Motion to Compel; denying 491 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s); denying 491 Motion for Miscellaneous Relief (jcm, Dpty Clk) (Entered: 04/08/2011)
509 MOTION for Attorney(s) Laurence Drew Borten to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 1085−841955) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 04/14/2011)
510 MOTION for Attorney(s) Jason Moff to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 1085−841962) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 04/14/2011)
511 MINUTE ORDER by Judge Gregory K Frizzell ; granting 509 Motion for Admission Pro Hac Vice; granting 510 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 04/14/2011)
512 Seventh MOTION to Compel by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 04/15/2011)
513 MOTION for Hearing PLAINTIFFS' MOTION FOR EXPEDITED HEARING (Re: 512 Seventh MOTION to Compel ) by AP, GC, JA, JB, JP, KT, RJ (Ingber, Miriam) (Entered: 04/15/2011)
514 MINUTE ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): No reply to be filed; defendants shall respond to plaintiff's motion as follows ( Responses due by 4/25/2011) (Re: 512 Seventh MOTION to Compel ) (jcm, Dpty Clk) (Entered: 04/18/2011)
515 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) of Scheduling Order by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr, All Plaintiffs (Page, David) Modified on 4/22/2011 to add filers (lml, Dpty Clk). (Entered: 04/21/2011)
NOTICE of Docket Entry Modification; Error: Not all filers were selected when filed; Correction: Edited docket text and added all plaintiffs and remaining defendants as filers (Re: 515 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) of Scheduling OrderJoint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) of Scheduling Order ) (lml, Dpty Clk) (Entered: 04/22/2011)
516 RESPONSE in Opposition to Motion (Re: 512 Seventh MOTION to Compel ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr ; (Bingham, Donald) (Entered: 04/25/2011)
517 ERRATA/CORRECTION (Re: 516 Response in Opposition to Motion ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (With attachments) (Bingham, Donald) (Entered: 04/26/2011)
518 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 512 Motion to Compel; granting 513 Motion for Hearing (jcm, Dpty Clk) (Entered:

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05/03/2011
05/16/2011 06/08/2011 06/09/2011 06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/27/2011
06/27/2011 06/29/2011

04/29/2011)
519 SCHEDULING ORDER by Judge Gregory K Frizzell Second Amended ; setting/resetting deadline(s)/hearing(s): ( Discovery due by 7/15/2011); setting/resetting scheduling order date(s): ( Discovery due by 7/15/2011); granting 515 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (hbo, Dpty Clk) (Entered: 05/03/2011)
520 SETTLEMENT CONFERENCE ORDER by Magistrate Judge T Lane Wilson, setting/resetting deadline(s)/hearing(s): (Magistrate Courtroom No. 2, Third Floor) ( Settlement Conference set for 8/25/2011 at 01:30 PM before Magistrate Judge T Lane Wilson) (crp, Dpty Clk) (Entered: 05/16/2011)
521 Unopposed MOTION to Substitute Party by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 06/08/2011)
522 ORDER by Judge Gregory K Frizzell ; adding party Linda English Weeks and Ann M Roberts terminating party Ronald L Mercer and Garoldine Webb ; granting 521 Motion to Substitute Party (hbo, Dpty Clk) (Entered: 06/09/2011)
523 MOTION for Attorney(s) Philip G. Barber to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 1085−873339) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 06/24/2011)
524 Unopposed MOTION to Seal Document by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Theban, Stephanie) (Entered: 06/24/2011)
525 SEALED MOTION (Theban, Stephanie) (Entered: 06/24/2011)
526 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 524 Unopposed MOTION to Seal Document ) (hbo, Dpty Clk) (Entered: 06/24/2011)
527 MINUTE ORDER by Judge Gregory K Frizzell ; granting 523 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) Modified on 6/27/2011 to correct order type(hbo, Dpty Clk). (Entered: 06/24/2011)
528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) Modified on 6/27/2011−This is a multi−part motion; See Doc #530 for second part (lml, Dpty Clk). (Entered: 06/24/2011)
529 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness and to Require Defendants to Produce the Documents Considered by Their Other Non−Retained Experts ) by AP, GC, JA, JB, JP, KT, RJ (Ingber, Miriam) (Entered: 06/24/2011)
530 MOTION for Production Documents Considered by their Other Non−Retained Experts (SUBMITTED AS DOC # 528 ) by AP, GC, JA, JB, JP, KT, RJ (lml, Dpty Clk) (Entered: 06/27/2011)
NOTICE of Docket Entry Modification; Error: This is a multi−part motion, but only one part was filed; Correction: Filed the second motion part as Document No. 530 (Re: 530 MOTION for Production Documents Considered by their Other Non−Retained Experts (SUBMITTED AS DOC # 528 ), 528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness ) (lml, Dpty Clk) (Entered: 06/27/2011)
531 ORDER by Magistrate Judge Frank H McCarthy ; granting 524 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 06/27/2011)
532 MOTION for Attorney(s) Susan Lambiase to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 1085−874967) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 06/29/2011)

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06/29/2011 06/29/2011 06/30/2011
07/01/2011 07/01/2011 07/01/2011 07/01/2011 07/01/2011 07/01/2011 07/06/2011
07/06/2011 07/08/2011

533 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 529 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s), 530 MOTION for Production Documents Considered by their Other Non−Retained Experts (SUBMITTED AS DOC # 528 ), 528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness ) (hbo, Dpty Clk) (Entered: 06/29/2011)
534 MINUTE ORDER by Judge Gregory K Frizzell ; granting 532 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 06/29/2011)
535 MINUTE ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): A telephone status hearing is set as follows to discuss procedures to expedite consideration of the motions. This will not be a hearing on the merits of the motions. Counsel Paul Demuro is to set up the telephone hearing and notify chambers of the call in number. ( Status Hearing set for 7/6/2011 at 09:30 AM before Magistrate Judge Frank H McCarthy) (Re: 529 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s), 530 MOTION for Production Documents Considered by their Other Non−Retained Experts (SUBMITTED AS DOC # 528 ), 528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness ) (jcm, Dpty Clk) (Entered: 06/30/2011)
536 MINUTE ORDER by Magistrate Judge Frank H McCarthy (TIME CHANGE ONLY), setting/resetting deadline(s)/hearing(s): ( Status Hearing set for 7/6/2011 at 01:30 PM before Magistrate Judge Frank H McCarthy) (crp, Dpty Clk) (Entered: 07/01/2011)
537 RESPONSE in Opposition to Motion (Re: 530 MOTION for Production Documents Considered by their Other Non−Retained Experts (SUBMITTED AS DOC # 528 ) ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (Theban, Stephanie) (Entered: 07/01/2011)
538 RESPONSE in Opposition to Motion (Re: 528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Theban, Stephanie) (Entered: 07/01/2011)
539 MOTION for Leave to File Two Rebuttal Expert Reports by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) (Entered: 07/01/2011)
540 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 539 MOTION for Leave to File Two Rebuttal Expert Reports ) by AP, GC, JA, JB, JP, KT, RJ (Moff, Jason) (Entered: 07/01/2011)
541 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 540 Opposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s), 539 MOTION for Leave to File Two Rebuttal Expert Reports ) (JLE, Chambers) (Entered: 07/01/2011)
542 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Status Hearing held on 7/6/2011 Reply to #528 and #530 is due by noon 7/8/11 ; setting/resetting deadline(s)/hearing(s): following are resp and reply dates for #539 ( Responses due by 7/12/2011, Replies due by 7/14/2011); granting 529 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s); granting 540 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 539 MOTION for Leave to File Two Rebuttal Expert Reports, 530 MOTION for Production Documents Considered by their Other Non−Retained Experts (SUBMITTED AS DOC # 528 ), 528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness ) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 07/06/2011)
543 MINUTE ORDER by Magistrate Judge T Lane Wilson (TIME CHANGE ONLY), setting/resetting deadline(s)/hearing(s): ( Settlement Conference set for 8/25/2011 at 09:15 AM before Magistrate Judge T Lane Wilson) (crp, Dpty Clk) (Entered: 07/06/2011)
544 REPLY to Response to Motion (Re: 528 MOTION to Exclude Shannon Rios from Testifying as an Expert Witness ) by AP, GC, JA, JB, JP, KT, RJ ; (Ingber, Miriam)

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07/08/2011 07/11/2011 07/11/2011
07/12/2011 07/12/2011 07/12/2011
07/13/2011 07/13/2011 07/13/2011 07/14/2011 07/14/2011 07/15/2011 07/15/2011 07/15/2011
07/15/2011 07/15/2011 07/15/2011

(Entered: 07/08/2011)
545 REPLY to Response to Motion (Re: 530 MOTION for Production Documents Considered by their Other Non−Retained Experts (SUBMITTED AS DOC # 528 ) ) by AP, GC, JA, JB, JP, KT, RJ ; (Ingber, Miriam) (Entered: 07/08/2011)
546 RESPONSE in Opposition to Motion (Re: 525 SEALED MOTION ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) Modified on 7/21/2011 to seal pursuant to #531(hbo, Dpty Clk). (Entered: 07/11/2011)
547 Opposed MOTION for Leave to Exceed Page Limitation by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Bingham, Donald) (Entered: 07/11/2011)
548 ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 547 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 07/12/2011)
549 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 525 SEALED MOTION ) (JLE, Chambers) (Entered: 07/12/2011)
550 RESPONSE in Opposition to Motion (Re: 539 MOTION for Leave to File Two Rebuttal Expert Reports ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Theban, Stephanie) (Entered: 07/12/2011)
551 MOTION to Seal Document by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Theban, Stephanie) (Entered: 07/13/2011)
552 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 528 Motion to Exclude (jcm, Dpty Clk) (Entered: 07/13/2011)
553 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 551 MOTION to Seal Document ) (hbo, Dpty Clk) (Entered: 07/13/2011)
554 ORDER by Magistrate Judge Frank H McCarthy ; granting 551 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 07/14/2011)
555 REPLY to Response to Motion (Re: 539 MOTION for Leave to File Two Rebuttal Expert Reports ) by AP, GC, JA, JB, JP, KT, RJ ; (Ingber, Miriam) (Entered: 07/14/2011)
556 ORDER by Magistrate Judge Frank H McCarthy ; denying 530 Motion for Production (jcm, Dpty Clk) (Entered: 07/15/2011)
557 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 539 Motion for Leave to File Document(s) (jcm, Dpty Clk) (Entered: 07/15/2011)
558 MOTION Decertification by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Bingham, Donald) (Entered: 07/15/2011)
559 MOTION to Seal Document by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 07/15/2011)
560 SEALED DOCUMENT (Bingham, Donald) (Entered: 07/15/2011)
561 MOTION for Summary Judgment by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) (Entered: 07/15/2011)

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07/15/2011 07/18/2011 07/25/2011 07/25/2011
07/25/2011 07/26/2011 07/28/2011
07/28/2011 07/29/2011 08/01/2011 08/01/2011
08/01/2011 08/01/2011 08/01/2011

562 MOTION to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Gentry, Dorothy) (Entered: 07/15/2011)
563 ORDER by Judge Gregory K Frizzell ; granting 559 Motion to Seal Document(s) (hbo, Dpty Clk) (Entered: 07/18/2011)
564 REPLY to Response to Motion (Re: 525 SEALED MOTION ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Aneta F Wilkinson, George E Young, Sr ; (Theban, Stephanie) Modified on 7/26/2011 sealed pursuant to order 531 (sam, Dpty Clk). (Entered: 07/25/2011)
565 MOTION FOR PERMISSION TO PARTICIPATE AS AMICUS CURIAE IN SETTLEMENT CONFERENCE AND BRIEF IN SUPPORT by American Legion Children's Home, Oklahoma Baptist Homes for Children, Oklahoma Lions Boys Ranch, Sand Springs Children's Home, White Fields, Inc. (Walters, Joseph) (Entered: 07/25/2011)
***Motion(s) Referred to Magistrate Wilson (Re: 565 MOTION FOR PERMISSION TO PARTICIPATE AS AMICUS CURIAE IN SETTLEMENT CONFERENCE AND BRIEF IN SUPPORT ) (sac, Dpty Clk) (Entered: 07/26/2011)
566 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge Wilson (Re: 565 MOTION FOR PERMISSION TO PARTICIPATE AS AMICUS CURIAE IN SETTLEMENT CONFERENCE AND BRIEF IN SUPPORT ) (hbo, Dpty Clk) (Entered: 07/26/2011)
567 MOTION Requesting the Attendance of Two Neutral Professional Advisers at the Settlement Conference (Re: 520 Settlement Conference Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s) ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) Modified on 8/5/2011 to seal PDF(tjc, Dpty Clk). (Entered: 07/28/2011)
***Motion(s) Referred to Magistrate Wilson (Re: 567 MOTION Requesting the Attendance of Two Neutral Professional Advisers at the Settlement Conference ) (sac, Dpty Clk) (Entered: 07/29/2011)
568 RESPONSE in Opposition to Motion (Re: 565 MOTION FOR PERMISSION TO PARTICIPATE AS AMICUS CURIAE IN SETTLEMENT CONFERENCE AND BRIEF IN SUPPORT ) by AP, GC, JA, JB, JP, KT, RJ ; (Dorwart, Frederic) (Entered: 07/29/2011)
569 MOTION for Attorney(s) Sarah Teresa Russo to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 1085−890282) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 08/01/2011)
570 MINUTE ORDER by Magistrate Judge T Lane Wilson (EXPEDITING RESPONSE AND REPLY DEADLINES). The reply deadline to Dkt. # 565 is 8/9/11. The response deadline to Dkt. # 567 is 8/4/11. A reply to Dkt. # 567 is not to be filed., setting/resetting deadline(s)/hearing(s): ( Replies due by 8/9/2011) (Re: 565 MOTION FOR PERMISSION TO PARTICIPATE AS AMICUS CURIAE IN SETTLEMENT CONFERENCE AND BRIEF IN SUPPORT, 567 MOTION Requesting the Attendance of Two Neutral Professional Advisers at the Settlement Conference ) (crp, Dpty Clk) (Entered: 08/01/2011)
571 MINUTE ORDER by Judge Gregory K Frizzell ; granting 569 Motion for Admission Pro Hac Vice (hbo, Dpty Clk) (Entered: 08/01/2011)
572 MOTION to Exclude the Testimony of John Goad Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. by Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) (Entered: 08/01/2011)
573 DESIGNATIONS (DEPOSITION/INTERROGATORY) re: deposition/interrogatories of Eneida Bluch, Stacey Hirsch, Will Hornsby, Mary Ellen Nold and Eliza H. VanDusen by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson,

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08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011

George E Young, Sr (With attachments) (Gentry, Dorothy) (Entered: 08/01/2011)
574 DESIGNATIONS (DEPOSITION/INTERROGATORY) re: deposition/interrogatories of Counsel on behalf of Plaintiffs by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Gentry, Dorothy) (Entered: 08/01/2011)
575 MOTION to Exclude Testimony of Jerry Milner, DSW Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Theban, Stephanie) (Entered: 08/01/2011)
576 MOTION to Exclude Testimony of A. Eugene Reynolds, Ph.D. Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Theban, Stephanie) (Entered: 08/01/2011)
577 DESIGNATIONS (DEPOSITION/INTERROGATORY) re: deposition/interrogatories of Amy White, Andrew Barclay, Aneta Wilkinson, Annette Burleigh, Barbara Priest, Bill Wilson, Deborah Goodman, Deborah Smith, Debra Clour, Debra Knecht, Donald Baumann, Elizabeth Roberts, Esther Rider−Salem, Frona Musgrove, Gary Miller, George Young, H.C. Skip Franklin, Howard Hendrick, J.G. Nair, Jeri Poplin, Jin Jew, Joani Webster, John Fluke, John Gelona, John Hale, Justin Hoenshell, Katherine Casillas, Kathryn Simms, Kelli Litsch, Larry Brown, Larry Johnson, Laura Strain, Linda Weeks, Lorrie Lutz, Margaret DeVault, Mark Jones, Marq Youngblood, Mary Grissom, Michael Peck, Nancy Hill−Overstreet, Nancy Robison, Nancy Thompson, Page Walley, Phil Motley, Rebecca Bogard, Richard DeVaughn, Robin Arnold−Williams, Shlomo Sawilowsky, Steven Dow, Sue Steib, Susan Case, Susan Smith, Tricia Howell by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) (Entered: 08/01/2011)
578 DESIGNATIONS (DEPOSITION/INTERROGATORY) re: deposition/interrogatories of OKDHS Defendants by AP, GC, JA, JB, JP, KT, RJ (Moff, Jason) (Entered: 08/01/2011)
579 MOTION to Exclude In Part the Testimony of Three of Defendants' Expert Witnesses Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 08/01/2011)
580 MOTION to Exclude Testimony of Zoran Obradovic, PH.D Pursuant to Daubert v. Merrel Dow Pharmaceuticals, Inc. and Brief in Support by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Garren, Richard) (Entered: 08/01/2011)
581 MOTION to Exclude Testimony of Viola P. Miller, Ed.D Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. and Brief in Support by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Koepsel, Kristopher) (Entered: 08/01/2011)
582 MOTION in Limine To Preclude Admission of Evidence of OKDHS Conduct That Does Not Implicate Plaintiffs' Constitutional Rights by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 08/01/2011)
583 BRIEF in Support of Motion (Re: 582 MOTION in Limine To Preclude Admission of Evidence of OKDHS Conduct That Does Not Implicate Plaintiffs' Constitutional Rights ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 08/01/2011)

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08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011
08/02/2011 08/02/2011 08/02/2011 08/03/2011 08/04/2011
08/04/2011 08/04/2011 08/04/2011

584 MOTION in Limine to Preclude Admission of Evidence of Any Class Member's Individual Case−History by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 08/01/2011)
585 BRIEF in Support of Motion (Re: 584 MOTION in Limine to Preclude Admission of Evidence of Any Class Member's Individual Case−History ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 08/01/2011)
586 MOTION in Limine to Preclude Admission of Evidence of Goals that do not Reflect Constitutional Requirements by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 08/01/2011)
587 BRIEF in Support of Motion (Re: 586 MOTION in Limine to Preclude Admission of Evidence of Goals that do not Reflect Constitutional Requirements ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 08/01/2011)
588 MOTION to Exclude Testimony of Dr. Mary Margaret "Peg" Hess, Ph.D., Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., and Brief in Support by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Bingham, Donald) Modified on 8/19/2011 to seal Exhibits 1 & 2 at request of counsel, pursuant to Protective Order Docket #147 (sdc, Dpty Clk). (Entered: 08/01/2011)
589 MINUTE ORDER by Court Clerk, directing Sarah Teresa Russo to file by August 23, 2011 a Motion for Admission Pro Hac Vice per Local Civil Rule 83.2. Additionally, if you intend to practice in this district in the future and want to become a member of this district, please submit an application for attorney admission. (lal, Dpty Clk) Modified on 8/3/2011; VACATED per 590 (sac, Dpty Clk). (Entered: 08/02/2011)
590 MINUTE ORDER by Court Clerk directing Attorney to file PHV motion entered in error, vacating/setting aside order(s) (Re: 589 Minute Order,, Directing Attorney to File PHV Motion, ) (Documents Terminated: 589 Minute Order,, Directing Attorney to File PHV Motion, ) (lal, Dpty Clk) (Entered: 08/02/2011)
591 ATTORNEY APPEARANCE by Kindanne Carole Jones on behalf of Attorney General of Oklahoma (Jones, Kindanne) (Entered: 08/02/2011)
592 OPINION AND ORDER by Judge Gregory K Frizzell ; denying 458 Motion to Bifurcate; denying 458 Motion for Miscellaneous Relief (hbo, Dpty Clk) (Entered: 08/03/2011)
593 Unopposed MOTION to Seal Document Response to Dkt. No. 567 Under Seal and to Seal Dkt. No. 567 (Re: 567 MOTION Requesting the Attendance of Two Neutral Professional Advisers at the Settlement Conference ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Nance, Robert) (Entered: 08/04/2011)
594 MOTION to Proceed With Representatives of Limited Authority at Settlement Conference by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Nance, Robert) (Entered: 08/04/2011)
595 BRIEF in Support of Motion (Re: 594 MOTION to Proceed With Representatives of Limited Authority at Settlement Conference ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 08/04/2011)
***Motion(s) Referred to Magistrate Judge Wilson (Re: 594 MOTION to Proceed With Representatives of Limited Authority at Settlement Conference ) (tjc, Dpty Clk)

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08/05/2011
08/05/2011
08/05/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011
08/05/2011 08/05/2011
08/05/2011
08/08/2011 08/08/2011 08/08/2011 08/09/2011
08/09/2011

(Entered: 08/05/2011)
596 RESPONSE in Support of Motion (Re: 565 MOTION FOR PERMISSION TO PARTICIPATE AS AMICUS CURIAE IN SETTLEMENT CONFERENCE AND BRIEF IN SUPPORT ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (Bingham, Donald) (Entered: 08/05/2011)
597 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge Wilson (Re: 593 Unopposed MOTION to Seal Document Response to Dkt. No. 567 Under Seal and to Seal Dkt. No. 567, 594 MOTION to Proceed With Representatives of Limited Authority at Settlement Conference ) (hbo, Dpty Clk) (Entered: 08/05/2011)
598 RESPONSE in Opposition to Motion (Re: 562 MOTION to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/05/2011)
599 RESPONSE in Opposition to Motion (Re: 558 MOTION Decertification ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/05/2011)
600 RESPONSE in Opposition to Motion (Re: 561 MOTION for Summary Judgment ) by AP, GC, JA, JB, JP, KT, RJ ; (Ingber, Miriam) (Entered: 08/05/2011)
601 EXHIBIT(S) 1−25 (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 08/05/2011)
602 EXHIBIT(S) 26−50 (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) (Entered: 08/05/2011)
603 EXHIBIT(S) 51−75 (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 08/05/2011)
604 EXHIBIT(S) 76−100 (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) Modified on 8/8/2011 to seal Attachment #21 and #22 due to personal identifiers (s−srt, Dpty Clk). (Entered: 08/05/2011)
605 EXHIBIT(S) 101−125 (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 08/05/2011)
606 EXHIBIT(S) 126−150 (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) Modified on 8/8/2011 to seal Attachment #2, #8 and #19 due to personal identifiers (s−srt, Dpty Clk). (Entered: 08/05/2011)
607 EXHIBIT(S) 151−174 (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) Modified on 8/8/2011 to seal Attachment #20 and #22 due to personal identifiers (s−srt, Dpty Clk). (Entered: 08/05/2011)
608 RESPONSE in Opposition to Motion (Re: 594 MOTION to Proceed With Representatives of Limited Authority at Settlement Conference ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Dorwart, Frederic) (Entered: 08/08/2011)
609 ERRATA/CORRECTION (Re: 600 Response in Opposition to Motion ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Ingber, Miriam) (Entered: 08/08/2011)
610 SEALED UNREDACTED VERSION of Dkt #[601−19, 602−6, 605−3] per Local Rule 5.3(b) (Ingber, Miriam) (Entered: 08/08/2011)
611 REPLY to Response to Motion (Re: 565 MOTION FOR PERMISSION TO PARTICIPATE AS AMICUS CURIAE IN SETTLEMENT CONFERENCE AND BRIEF IN SUPPORT ) by American Legion Children's Home, Oklahoma Baptist Homes for Children, Oklahoma Lions Boys Ranch, Sand Springs Children's Home, White Fields, Inc. ; (Walters, Joseph) (Entered: 08/09/2011)
612 MOTION to Strike Certain Deposition Designations of Plaintiffs by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M

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08/09/2011 08/09/2011 08/09/2011
08/09/2011 08/10/2011 08/10/2011 08/10/2011 08/12/2011
08/12/2011

Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Gentry, Dorothy) (Entered: 08/09/2011)
613 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 612 MOTION to Strike Certain Deposition Designations of Plaintiffs ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Gentry, Dorothy) Modified on 8/10/2011; This is a two−part motion, see Doc # 616 for second event (tjc, Dpty Clk). Modified on 8/23/2011; Document WITHDRAWN per Order # 639 (tjc, Dpty Clk). (Entered: 08/09/2011)
614 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 525 Sealed Motion (jcm, Dpty Clk) (Entered: 08/09/2011)
615 SCHEDULING ORDER by Judge Gregory K Frizzell Amended per schedule conflict for a 4 week trial, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 11/14/2011 at 09:30 AM before Judge Gregory K Frizzell, Miscellaneous Hearing set for 12/12/2011 at 09:30 AM before Judge Gregory K Frizzell), setting/resetting scheduling order date(s): ( Proposed Pretrial Order due by 1/3/2012, Pretrial Conference set for 1/9/2012 at 09:30 AM before Judge Gregory K Frizzell, Nonjury Trial set for 2/21/2012 at 09:30 AM before Judge Gregory K Frizzell) (Re: 562 MOTION to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris, 561 MOTION for Summary Judgment, 558 MOTION Decertification ) (hbo, Dpty Clk) (Entered: 08/09/2011)
616 MOTION to Expedite Ruling (submitted as part of Doc # 613 ) (Re: 612 MOTION to Strike Certain Deposition Designations of Plaintiffs ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (tjc, Dpty Clk) Modified on 8/23/2011; Document WITHDRAWN per Order # 639 (tjc, Dpty Clk). (Entered: 08/10/2011)
NOTICE of Docket Entry Modification; Error: Document 613 is a two−part motion, but not all parts were filed; Correction: Filed the remaining motion as Document # 616 (Re: 613 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) (tjc, Dpty Clk) (Entered: 08/10/2011)
617 RESPONSE in Opposition to Motion (Re: 613 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) by AP, JA, JB, JP, KT, RJ ; (Moff, Jason) (Entered: 08/10/2011)
618 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 613 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s), 616 MOTION to Expedite Ruling (submitted as part of Doc # 613 ) MOTION to Expedite Ruling (submitted as part of Doc # 613 ) ) (hbo, Dpty Clk) (Entered: 08/10/2011)
619 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 519 Scheduling Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Scheduling Order Date(s), Setting/Resetting Scheduling Order Date(s), Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), 615 Scheduling Order,,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Scheduling Order Date(s), Setting/Resetting Scheduling Order Date(s), Setting/Resetting Scheduling Order Date(s) ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Nance, Robert) (Entered: 08/12/2011)
620 Unopposed MOTION for Leave to Exceed Page Limitation by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 08/12/2011)

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08/16/2011 08/17/2011
08/18/2011 08/18/2011 08/18/2011 08/18/2011 08/19/2011 08/19/2011 08/19/2011
08/19/2011 08/22/2011
08/22/2011

621 ORDER by Judge Gregory K Frizzell ; granting 620 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 08/12/2011)
622 MINUTE ORDER by Magistrate Judge T Lane Wilson ; sealing document(s); granting 593 Motion to Seal Document(s) (Re: 567 MOTION Requesting the Attendance of Two Neutral Professional Advisers at the Settlement Conference ) (crp, Dpty Clk) (Entered: 08/12/2011)
623 SEALED DOCUMENT (Nance, Robert) (Entered: 08/12/2011)
624 SCHEDULING ORDER by Judge Gregory K Frizzell Amended ; granting 619 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 615 Scheduling Order,,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Scheduling Order Date(s), Setting/Resetting Scheduling Order Date(s), Setting/Resetting Scheduling Order Date(s) ) (hbo, Dpty Clk) (Entered: 08/16/2011)
625 SEALED ORDER (sdc, Dpty Clk) (Entered: 08/16/2011)
626 MOTION to Withdraw Document(s) (Re: 613 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s), 616 MOTION to Expedite Ruling (submitted as part of Doc # 613 ) MOTION to Expedite Ruling (submitted as part of Doc # 613 ) ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Nance, Robert) (Entered: 08/17/2011)
627 MOTION to Withdraw Attorney(s) by AP, GC, JA, JB, JP, KT, RJ (Lowry, Marcia) (Entered: 08/18/2011)
628 ORDER by Judge Gregory K Frizzell ; terminating attorney Yasmin Grewal−Kok ; granting 627 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 08/18/2011)
629 MINUTE ORDER by Magistrate Judge T Lane Wilson ; granting 565 Motion for Miscellaneous Relief (crp, Dpty Clk) (Entered: 08/18/2011)
630 SEALED MINUTE ORDER by Magistrate Judge T Lane Wilson Modified on 8/18/2011 TO SEAL PDF (crp, Dpty Clk). (Entered: 08/18/2011)
631 SEALED ORDER (crp, Dpty Clk) (Entered: 08/19/2011)
632 REPLY to Response to Motion (Re: 561 MOTION for Summary Judgment ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (Nance, Robert) (Entered: 08/19/2011)
633 REPLY to Response to Motion (Re: 562 MOTION to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (Gentry, Dorothy) (Entered: 08/19/2011)
634 REPLY to Response to Motion (Re: 558 MOTION Decertification ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (Bingham, Donald) (Entered: 08/19/2011)
635 RESPONSE in Opposition to Motion (Re: 579 MOTION to Exclude In Part the Testimony of Three of Defendants' Expert Witnesses Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Theban, Stephanie) (Entered: 08/22/2011)
636 RESPONSE in Opposition to Motion (Re: 572 MOTION to Exclude the Testimony of John Goad Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)

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08/22/2011 08/22/2011 08/22/2011
08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/23/2011

637 SEALED UNREDACTED VERSION of Dkt #[636−2,3,9] per Local Rule 5.3(b) (Ingber, Miriam) (Entered: 08/22/2011)
638 RESPONSE in Opposition to Motion (Re: 581 MOTION to Exclude Testimony of Viola P. Miller, Ed.D Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. and Brief in Support ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)
639 ORDER by Magistrate Judge Frank H McCarthy ; striking/withdrawing document(s); granting 626 Motion to Withdraw Documents(s) (Re: 613 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s), 616 MOTION to Expedite Ruling (submitted as part of Doc # 613 ) MOTION to Expedite Ruling (submitted as part of Doc # 613 ) ) (Documents Terminated: 616 MOTION to Expedite Ruling (submitted as part of Doc # 613 ) MOTION to Expedite Ruling (submitted as part of Doc # 613 ), 613 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) (kjp, Dpty Clk) (Entered: 08/22/2011)
640 RESPONSE in Opposition to Motion (Re: 580 MOTION to Exclude Testimony of Zoran Obradovic, PH.D Pursuant to Daubert v. Merrel Dow Pharmaceuticals, Inc. and Brief in Support ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)
641 RESPONSE in Opposition to Motion (Re: 575 MOTION to Exclude Testimony of Jerry Milner, DSW Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)
642 RESPONSE in Opposition to Motion (Re: 588 MOTION to Exclude Testimony of Dr. Mary Margaret "Peg" Hess, Ph.D., Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., and Brief in Support ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)
643 RESPONSE in Opposition to Motion (Re: 576 MOTION to Exclude Testimony of A. Eugene Reynolds, Ph.D. Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Moff, Jason) (Entered: 08/22/2011)
644 SEALED UNREDACTED VERSION of Dkt #[643−1, 8] per Local Rule 5.3(b) (Moff, Jason) (Entered: 08/22/2011)
645 RESPONSE in Opposition to Motion (Re: 586 MOTION in Limine to Preclude Admission of Evidence of Goals that do not Reflect Constitutional Requirements ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)
646 SEALED UNREDACTED VERSION of Dkt #[645−6] per Local Rule 5.3(b) (Ingber, Miriam) (Entered: 08/22/2011)
647 RESPONSE in Opposition to Motion (Re: 584 MOTION in Limine to Preclude Admission of Evidence of Any Class Member's Individual Case−History ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)
648 SEALED UNREDACTED VERSION of Dkt #[647−1, 2, 3] per Local Rule 5.3(b) (Ingber, Miriam) (Entered: 08/22/2011)
649 RESPONSE in Opposition to Motion (Re: 582 MOTION in Limine To Preclude Admission of Evidence of OKDHS Conduct That Does Not Implicate Plaintiffs' Constitutional Rights ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/22/2011)
650 SEALED UNREDACTED VERSION of Dkt #[649−2] per Local Rule 5.3(b) (Ingber, Miriam) (Entered: 08/22/2011)
651 Unopposed MOTION to Seal Document by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (De Simone, Donna) (Entered: 08/23/2011)

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09/06/2011

652 SEALED MOTION (De Simone, Donna) (Entered: 08/23/2011)
***Motion(s) Referred to Magistrate McCarthy (Re: 652 SEALED MOTION ) (sac, Dpty Clk) (Entered: 08/24/2011)
653 ERRATA/CORRECTION (Re: 651 Unopposed MOTION to Seal Document ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (De Simone, Donna) (Entered: 08/24/2011)
654 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 651 Unopposed MOTION to Seal Document, 652 SEALED MOTION ) (hbo, Dpty Clk) (Entered: 08/25/2011)
655 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 651 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 08/26/2011)
656 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 450 Motion to Strike (jcm, Dpty Clk) (Entered: 08/26/2011)
657 RESPONSE in Opposition to Motion (Re: 612 MOTION to Strike Certain Deposition Designations of Plaintiffs ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 08/30/2011)
658 Unopposed MOTION for Extension of Time to Reply to Motion Response (Re: 582 MOTION in Limine To Preclude Admission of Evidence of OKDHS Conduct That Does Not Implicate Plaintiffs' Constitutional Rights, 584 MOTION in Limine to Preclude Admission of Evidence of Any Class Member's Individual Case−History, 586 MOTION in Limine to Preclude Admission of Evidence of Goals that do not Reflect Constitutional Requirements ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 09/05/2011)
659 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Replies due by 9/7/2011); granting 658 Motion for Extension of Time to Reply to Motion Response (Re: 584 MOTION in Limine to Preclude Admission of Evidence of Any Class Member's Individual Case−History, 586 MOTION in Limine to Preclude Admission of Evidence of Goals that do not Reflect Constitutional Requirements, 582 MOTION in Limine To Preclude Admission of Evidence of OKDHS Conduct That Does Not Implicate Plaintiffs' Constitutional Rights ) (hbo, Dpty Clk) (Entered: 09/06/2011)
660 SEALED DOCUMENT (Dorwart, Frederic) (Entered: 09/06/2011)
661 REPLY to Response to Motion (Re: 580 MOTION to Exclude Testimony of Zoran Obradovic, PH.D Pursuant to Daubert v. Merrel Dow Pharmaceuticals, Inc. and Brief in Support ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Garren, Richard) (Entered: 09/06/2011)
662 REPLY to Response to Motion (Re: 579 MOTION to Exclude In Part the Testimony of Three of Defendants' Expert Witnesses Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Moff, Jason) (Entered: 09/06/2011)
663 REPLY to Response to Motion (Re: 572 MOTION to Exclude the Testimony of John Goad Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 09/06/2011)
664 REPLY to Response to Motion (Re: 575 MOTION to Exclude Testimony of Jerry Milner, DSW Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Page, David) (Entered: 09/06/2011)

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665 REPLY to Response to Motion (Re: 581 MOTION to Exclude Testimony of Viola P. Miller, Ed.D Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. and Brief in Support ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (De Simone, Donna) (Entered: 09/06/2011)
666 REPLY to Response to Motion (Re: 576 MOTION to Exclude Testimony of A. Eugene Reynolds, Ph.D. Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc. ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Koepsel, Kristopher) (Entered: 09/06/2011)
667 REPLY to Response to Motion (Re: 588 MOTION to Exclude Testimony of Dr. Mary Margaret "Peg" Hess, Ph.D., Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., and Brief in Support ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 09/06/2011)
668 REPLY to Response to Motion (Re: 584 MOTION in Limine to Preclude Admission of Evidence of Any Class Member's Individual Case−History ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 09/07/2011)
669 REPLY to Response to Motion (Re: 582 MOTION in Limine To Preclude Admission of Evidence of OKDHS Conduct That Does Not Implicate Plaintiffs' Constitutional Rights ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (Bingham, Donald) (Entered: 09/07/2011)
670 REPLY to Response to Motion (Re: 586 MOTION in Limine to Preclude Admission of Evidence of Goals that do not Reflect Constitutional Requirements ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Bingham, Donald) (Entered: 09/07/2011)
671 COUNTER DEPOSITION DESIGNATIONS by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) (Entered: 09/09/2011)
672 OBJECTION to Deposition Designations (Re: 573 Designations (Deposition/Interrogatory), Designations (Deposition/Interrogatory) ) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) (Entered: 09/09/2011)
673 COUNTER DEPOSITION DESIGNATIONS by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Gentry, Dorothy) (Entered: 09/09/2011)
674 OBJECTION to Deposition Designations re: depo of Rebecca Bogard, Susan Case, Richard DeVaughn, Steven Dow, Mary Grissom, Howard Hendrick, Larry Johnson, Mark Jones, Debra Knecht, Gary Miller, Phil Motley, Michael Peck, Jeri Poplin, Esther Rider−Salem, Elizabeth Roberts, Nancy Robinson, Deborah Smith, Susan Smith, Joani Webster, Linda Weeks, Any White, Aneta Wilkerson, George Young and Marq Youngblood by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Gentry, Dorothy) (Entered: 09/09/2011)
675 REPLY to Response to Motion (Re: 612 MOTION to Strike Certain Deposition Designations of Plaintiffs ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (Gentry, Dorothy) (Entered: 09/13/2011)
676 MOTION to Withdraw Attorney(s) Susan Lambiase by AP, GC, JA, JB, JP, KT, RJ (Lowry, Marcia) (Entered: 09/15/2011)
677 ORDER by Judge Gregory K Frizzell ; terminating attorney Susan Lambiase ; granting 676 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 09/15/2011)

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10/07/2011
10/07/2011

678 SEALED DOCUMENT (De Simone, Donna) (Entered: 09/15/2011)
679 SEALED DOCUMENT (De Simone, Donna) (Entered: 09/15/2011)
680 Opposed MOTION to Seal Document by Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (De Simone, Donna) (Entered: 09/16/2011)
681 RESPONSE in Opposition to Motion (Re: 680 Opposed MOTION to Seal Document ) by All Plaintiffs ; (Dorwart, Frederic) (Entered: 09/21/2011)
682 MOTION to Strike "Final Corrected" Report of John Goad, submitted August 12, 2011 and Bolstering Declarations of Mr. Goad and Dr. Thompson by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) (Entered: 09/22/2011)
683 OBJECTION to Deposition Designations (Re: 671 Counter Deposition Designations ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Koepsel, Kristopher) (Entered: 09/23/2011)
684 ERRATA/CORRECTION (Re: 633 Reply to Response to Motion, ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Gentry, Dorothy) (Entered: 09/23/2011)
685 OBJECTION to Deposition Designations (Re: 673 Counter Deposition Designations ) by All Plaintiffs (With attachments) (Moff, Jason) (Entered: 09/23/2011)
686 Supplemental RESPONSE in Opposition to Motion (Re: 680 Opposed MOTION to Seal Document ) by AP, GC, JA, JB, JP, KT, RJ ; (Dorwart, Frederic) (Entered: 09/26/2011)
687 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 680 Opposed MOTION to Seal Document ) (JLE, Chambers) (Entered: 09/27/2011)
688 OPINION AND ORDER by Magistrate Judge Frank H McCarthy [Dkt, 525] is granted as to Defendants Mercer and Rawlings ; granting 652 Sealed Motion (Re: 525 SEALED MOTION ) (jcm, Dpty Clk) (Entered: 09/27/2011)
689 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 680 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 09/27/2011)
690 MOTION for Discovery To Reopen Fact Discovery For Limited Purpose by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Moff, Jason) (Entered: 09/30/2011)
691 SEALED UNREDACTED VERSION of Dkt #[690−8] per Local Rule 5.3(b) (Moff, Jason) (Entered: 09/30/2011)
692 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 690 MOTION for Discovery To Reopen Fact Discovery For Limited Purpose ) (JLE, Chambers) (Entered: 10/03/2011)
693 SEALED MOTION (De Simone, Donna) Modified on 12/6/2011−WITHDRAWN PER ORDER # 745 (lml, Dpty Clk). (Entered: 10/06/2011)
694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off by All Plaintiffs (With attachments) (Moff, Jason) Modified on 10/11/2011; This is a two−part motion, see Doc # 697 for second event (tjc, Dpty Clk). (Entered: 10/07/2011)
695 Unopposed MOTION to Expedite Ruling (Re: 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off Or, in the Alternative, To Compel Their Depositions ) by All Plaintiffs (Moff, Jason) (Entered: 10/07/2011)
696 MINUTE ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Responses due by 10/14/2011); granting 695 Motion to Expedite Ruling (Re: 694 MOTION to Exclude Trial Testimony of Eight Witnesses

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Disclosed After the Fact Discovery Cut−Off Or, in the Alternative, To Compel Their Depositions ) (GKF2, Chambers) (Entered: 10/07/2011)
697 MOTION to Compel (submitted as part of Doc # 694 ) by All Plaintiffs (tjc, Dpty Clk) (Entered: 10/11/2011)
NOTICE of Docket Entry Modification; Error: Document 694 is a two−part motion, but not all parts were filed; Correction: Filed the remaining motion as Document # 697 (Re: 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off ) (tjc, Dpty Clk) (Entered: 10/11/2011)
698 Unopposed MOTION to Seal Document 694−1, 694−2, 694−3 (Re: 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off ) by All Plaintiffs (Moff, Jason) (Entered: 10/11/2011)
699 ERRATA/CORRECTION (Re: 697 MOTION to Compel (submitted as part of Doc # 694 ), 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off, 698 Unopposed MOTION to Seal Document 694−1, 694−2, 694−3 ) by All Plaintiffs (With attachments) (Moff, Jason) (Entered: 10/11/2011)
700 ORDER by Judge Gregory K Frizzell ; granting 698 Motion to Seal Document(s) (Re: 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off ) (hbo, Dpty Clk) (Entered: 10/11/2011)
701 RESPONSE in Opposition to Motion (Re: 682 MOTION to Strike "Final Corrected" Report of John Goad, submitted August 12, 2011 and Bolstering Declarations of Mr. Goad and Dr. Thompson ) by AP, GC, JA, JB, JP, KT, RJ ; (With attachments) (Ingber, Miriam) (Entered: 10/13/2011)
702 RESPONSE in Opposition to Motion (Re: 697 MOTION to Compel (submitted as part of Doc # 694 ), 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Theban, Stephanie) (Entered: 10/14/2011)
703 Unopposed MOTION to Seal Document by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Theban, Stephanie) (Entered: 10/14/2011)
704 SEALED DOCUMENT (Theban, Stephanie) (Entered: 10/14/2011)
705 ORDER by Judge Gregory K Frizzell ; granting 703 Motion to Seal Document(s) (Re: 697 MOTION to Compel (submitted as part of Doc # 694 ), 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off ) (hbo, Dpty Clk) (Entered: 10/17/2011)
706 Opposed MOTION for Leave to Exceed Page Limitation Response Brief by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Theban, Stephanie) (Entered: 10/17/2011)
707 MINUTE ORDER by Judge Gregory K Frizzell Defendant is given leave to file a brief not to exceed 30 pages. ; granting in part and denying in part 706 Motion for Leave to Exceed Page Limitation (GKF2, Chambers) (Entered: 10/17/2011)
708 REPLY to Response to Motion (Re: 697 MOTION to Compel (submitted as part of Doc # 694 ), 694 MOTION to Exclude Trial Testimony of Eight Witnesses Disclosed After the Fact Discovery Cut−Off ) by All Plaintiffs ; (With attachments) (Ingber, Miriam) (Entered: 10/19/2011)
709 Unopposed MOTION to Seal Document by All Plaintiffs (Moff, Jason) (Entered: 10/20/2011)
710 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 709 Unopposed MOTION to Seal Document ) (hbo, Dpty Clk) (Entered: 10/20/2011)

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10/31/2011
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11/15/2011

711 ORDER by Magistrate Judge Frank H McCarthy ; granting 709 Motion to Seal Document(s) (jcm, Dpty Clk) (Entered: 10/21/2011)
712 SEALED MOTION (Ingber, Miriam) (Entered: 10/21/2011)
713 SEALED DOCUMENT (Ingber, Miriam) (Entered: 10/21/2011)
714 ORDER by Judge Gregory K Frizzell ; granting 694 Motion to Exclude; finding as moot 697 Motion to Compel (hbo, Dpty Clk) (Entered: 10/21/2011)
715 RESPONSE in Opposition to Motion (Re: 690 MOTION for Discovery To Reopen Fact Discovery For Limited Purpose ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Theban, Stephanie) (Entered: 10/21/2011)
716 SEALED DOCUMENT (sdc, Dpty Clk) (Entered: 10/24/2011)
717 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 693 SEALED MOTION ) (hbo, Dpty Clk) (Entered: 10/25/2011)
718 REPLY to Response to Motion (Re: 682 MOTION to Strike "Final Corrected" Report of John Goad, submitted August 12, 2011 and Bolstering Declarations of Mr. Goad and Dr. Thompson ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Nance, Robert) (Entered: 10/27/2011)
719 Joint OBJECTION to Deposition Designations re: depo of Rebecca Bogard, Enieda Blugh, Susan Case, Richard DeVaughn, Steven Dow, Mary Grissom, Howard Hendrick, Stacey Hirsch, Will Hornsby, Larry Johnson, Mark Jones, Debra Knecht, Gary Miller, Phil Motley, Michael Peck, Mary Ellen Nold, Jeri Poplin, Esther Rider−Salem, Elizabeth Roberts, Nancy Robinson, Deborah Smith, Susan Smith, Eliza VanDusen, Joannie Webster, Linda Weeks, Amy White, Aneta Wilkinson, George Young and Marq Youngblood by All Plaintiffs, Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Gentry, Dorothy) (Entered: 10/31/2011)
722 SETTLEMENT CONFERENCE REPORT by Magistrate Judge T Lane Wilson advising negotiations are pending (crp, Dpty Clk) (Entered: 11/03/2011)
720 ERRATA/CORRECTION (Re: 602 Exhibit(s) in Support of Document(s), 600 Response in Opposition to Motion ) by All Plaintiffs (With attachments) (Moff, Jason) (Entered: 11/01/2011)
721 Unopposed MOTION for Leave to Exceed Page Limitation by All Plaintiffs (Ingber, Miriam) (Entered: 11/02/2011)
723 ORDER by Judge Gregory K Frizzell ; granting 721 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 11/03/2011)
724 REPLY to Response to Motion (Re: 690 MOTION for Discovery To Reopen Fact Discovery For Limited Purpose ) by All Plaintiffs ; (Moff, Jason) (Entered: 11/04/2011)
725 SEALED DOCUMENT (De Simone, Donna) (Entered: 11/04/2011)
726 SEALED DOCUMENT (Bingham, Donald) (Entered: 11/10/2011)
729 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Motion Hearing held on 11/14/2011, setting/resetting deadline(s)/hearing(s): (Re: 562 MOTION to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris, 558 MOTION Decertification ) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) Modified on 11/28/2011 to correct file date(hbo, Dpty Clk). (Entered: 11/17/2011)
727 OPINION AND ORDER by Judge Gregory K Frizzell re Defendants's Motion to Decertify Class ; denying 558 Motion for Miscellaneous Relief (hbo, Dpty Clk) (Entered: 11/15/2011)

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11/30/2011 12/01/2011

728 SETTLEMENT CONFERENCE REPORT by Magistrate Judge T Lane Wilson (jcm, Dpty Clk) (Entered: 11/16/2011)
730 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Motion Hearing held on 11/15/2011, taking motion(s) under advisement (Re: 558 MOTION Decertification, 561 MOTION for Summary Judgment ) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) Modified on 11/28/2011 to correct file date(hbo, Dpty Clk). (Entered: 11/17/2011)
731 MOTION to Substitute Party Wes Lane by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Bingham, Donald) (Entered: 11/17/2011)
732 MOTION for Consideration of Subsequent Court Rulings in Deciding Dkt. 690 (Re: 690 MOTION for Discovery To Reopen Fact Discovery For Limited Purpose)(Re: 727 Opinion and Order, Ruling on Motion for Miscellaneous Relief) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Theban, Stephanie) Modified on 11/18/2011 to reflect correct event and to add link to Doc # 690 (tjc, Dpty Clk). (Entered: 11/17/2011)
733 MOTION for Attorney(s) Jodi Miller to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 1085−936388) by AP, GC, JA, JB, JP, KT, RJ (With attachments) (Dorwart, Frederic) (Entered: 11/17/2011)
NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Motion to Reconsider); Correction: Edited docket text to reflect the correct event (Re: 732 MOTION for Consideration of Subsequent Court Rulings in Deciding Dkt. 690 ) (tjc, Dpty Clk) (Entered: 11/18/2011)
734 ORDER by Judge Gregory K Frizzell ; adding party Wes Lane terminating party George E Young, Sr ; granting 731 Motion to Substitute Party (Documents Terminated: 731 MOTION to Substitute Party Wes Lane ) (cds, Dpty Clk) (Entered: 11/18/2011)
735 MINUTE ORDER by Judge Gregory K Frizzell : Granting Plaintiffs' Motion for admission pro hac vice as to Jodi Miller, provided that within 7 days she submit her CM/ECF Registration form pursuant to the Court's Administrative Guide ; granting 733 Motion for Admission Pro Hac Vice (pll, Dpty Clk) (Entered: 11/18/2011)
736 SEALED DOCUMENT (Ingber, Miriam) (Entered: 11/21/2011)
737 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 690 Motion for Discovery (jcm, Dpty Clk) (Entered: 11/23/2011)
738 OPINION AND ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 11/30/2011) (Re: 693 SEALED MOTION, 712 SEALED MOTION ) (jcm, Dpty Clk) (Entered: 11/23/2011)
739 TRANSCRIPT of Proceedings (Unredacted) of motion hearing held on 11/14/2011 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−166). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 729 Minutes of Motion Hearing, Setting/Resetting Deadline(s)/Hearing(s)) (grd, Crt Rptr) Modified on 2/27/2012 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 11/29/2011)
740 RESPONSE (Re: 738 Opinion and Order, Setting/Resetting Deadline(s)/Hearing(s), ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (De Simone, Donna) (Entered: 11/30/2011)
741 OPINION AND ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 561 Motion for Summary Judgment (hbo, Dpty Clk) (Entered: 12/01/2011)

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12/05/2011 12/05/2011 12/05/2011 12/05/2011 12/05/2011 12/05/2011 12/05/2011 12/05/2011 12/05/2011 12/05/2011 12/07/2011 12/07/2011
12/09/2011 12/13/2011 12/14/2011 12/16/2011

742 FINAL WITNESS LIST by All Plaintiffs (With attachments) (Ingber, Miriam) (Entered: 12/05/2011)
743 Unopposed MOTION to Seal Document (Re: 742 Final Witness List ) by All Plaintiffs (Ingber, Miriam) (Entered: 12/05/2011)
744 SEALED UNREDACTED VERSION of Dkt #[742−1] per Local Rule 5.3(b) (Ingber, Miriam) (Entered: 12/05/2011)
745 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; striking/withdrawing document(s); denying 712 Sealed Motion (Re: 693 SEALED MOTION ) (Documents Terminated: 693 SEALED MOTION ) (jcm, Dpty Clk) (Entered: 12/05/2011)
746 ORDER by Judge Gregory K Frizzell ; granting 743 Motion to Seal Document(s) (hbo, Dpty Clk) (Entered: 12/05/2011)
747 FINAL EXHIBIT LIST by All Plaintiffs (With attachments) (Ingber, Miriam) (Entered: 12/05/2011)
748 FINAL WITNESS LIST by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks (With attachments) (Bingham, Donald) (Entered: 12/05/2011)
749 Unopposed MOTION to Seal Document by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (Bingham, Donald) (Entered: 12/05/2011)
750 SEALED DOCUMENT (Bingham, Donald) (Entered: 12/05/2011)
751 FINAL EXHIBIT LIST by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (With attachments) (Bingham, Donald) (Entered: 12/05/2011)
752 ORDER by Judge Gregory K Frizzell ; granting 749 Motion to Seal Document(s) (hbo, Dpty Clk) (Entered: 12/07/2011)
753 MINUTE ORDER by Judge Gregory K Frizzell Due to schedule conflict teh Daubert Hearing set 12−12−11 is striken and reset, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 1/9/2012 at 09:30 AM before Judge Gregory K Frizzell) (Re: 588 MOTION to Exclude Testimony of Dr. Mary Margaret "Peg" Hess, Ph.D., Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., and Brief in Support, 572 MOTION to Exclude the Testimony of John Goad Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc., 580 MOTION to Exclude Testimony of Zoran Obradovic, PH.D Pursuant to Daubert v. Merrel Dow Pharmaceuticals, Inc. and Brief in Support, 579 MOTION to Exclude In Part the Testimony of Three of Defendants' Expert Witnesses Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc., 576 MOTION to Exclude Testimony of A. Eugene Reynolds, Ph.D. Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc., 581 MOTION to Exclude Testimony of Viola P. Miller, Ed.D Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. and Brief in Support, 575 MOTION to Exclude Testimony of Jerry Milner, DSW Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. ) (hbo, Dpty Clk) (Entered: 12/07/2011)
754 ERRATA/CORRECTION (Re: 751 Final Exhibit List ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (With attachments) (Bingham, Donald) (Entered: 12/09/2011)
755 MOTION to Withdraw Attorney(s) Jason Moff by All Plaintiffs (Lowry, Marcia) (Entered: 12/13/2011)
756 ORDER by Judge Gregory K Frizzell ; terminating attorney Jason Michael Moff ; granting 755 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 12/14/2011)
757 OPINION AND ORDER by Judge Gregory K Frizzell (Re: 562 MOTION to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris ) (hbo, Dpty Clk) (Entered: 12/16/2011)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 99 of 110

12/20/2011 12/20/2011 12/22/2011 12/23/2011 01/02/2012 01/03/2012 01/03/2012 01/03/2012 01/03/2012 01/03/2012 01/04/2012 01/06/2012
01/09/2012

758 MOTION to Compel Limited Supplemental Disclosures by All Plaintiffs (With attachments) (Ingber, Miriam) (Entered: 12/20/2011)
759 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 758 MOTION to Compel Limited Supplemental Disclosures ) by All Plaintiffs (Ingber, Miriam) (Entered: 12/20/2011)
760 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) of Certain Pre−Trial Deadlines by All Plaintiffs, Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (Ingber, Miriam) (Entered: 12/22/2011)
761 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Proposed Pretrial Order due by 1/6/2012, Responses due by 1/6/2012, Replies due by 1/13/2012); granting 760 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 758 MOTION to Compel Limited Supplemental Disclosures ) (pll, Dpty Clk) (Entered: 12/23/2011)
762 ERRATA/CORRECTION (Re: 582 MOTION in Limine To Preclude Admission of Evidence of OKDHS Conduct That Does Not Implicate Plaintiffs' Constitutional Rights, 669 Reply to Response to Motion, ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (Bingham, Donald) (Entered: 01/02/2012)
763 OBJECTION To Defendants' Rule 26(a)(3) Witness List (Re: 750 Sealed Document, 748 Final Witness List ) by All Plaintiffs (With attachments) (Ingber, Miriam) (Entered: 01/03/2012)
764 SEALED UNREDACTED VERSION of Dkt #[763−1] per Local Rule 5.3(b) (Ingber, Miriam) (Entered: 01/03/2012)
765 OBJECTION To Defendants' Rule 26(a)(3) Exhibit List (Re: 751 Final Exhibit List, 754 Errata/Correction to Document ) by All Plaintiffs (With attachments) (Ingber, Miriam) (Entered: 01/03/2012)
766 Redacted OBJECTION to Plaintiffs' Pretrial Disclosures (Re: 742 Final Witness List, 747 Final Exhibit List ) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Wes Lane, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (De Simone, Donna) (Entered: 01/03/2012)
767 SEALED UNREDACTED VERSION of Dkt # 766 per Local Rule 5.3(b) (De Simone, Donna) Modified on 1/4/2012 to correct event (tjc, Dpty Clk). (Entered: 01/03/2012)
768 SETTLEMENT CONFERENCE REPORT by Magistrate Judge T Lane Wilson advising case settled. (crp, Dpty Clk) Modified on 1/6/2012 to correct the file date (crp, Dpty Clk). (Entered: 01/06/2012)
769 MINUTE ORDER by Judge Gregory K Frizzell Ordered that the current schedule is stricken and pending motions are found moot at this time, pending settlement ; striking/terminating deadline(s)/Hearing(s); finding as moot 572 Motion to Exclude; finding as moot 575 Motion to Exclude; finding as moot 576 Motion to Exclude; finding as moot 579 Motion to Exclude; finding as moot 580 Motion to Exclude; finding as moot 581 Motion to Exclude; finding as moot 582 Motion in Limine; finding as moot 584 Motion in Limine; finding as moot 586 Motion in Limine; finding as moot 588 Motion to Exclude; finding as moot 612 Motion to Strike; finding as moot 672 Objection to Deposition Designations; finding as moot 674 Objection to Deposition Designations; finding as moot 682 Motion to Strike; finding as moot 683 Objection to Deposition Designations; finding as moot 685 Objection to Deposition Designations; finding as moot 719 Objection to Deposition Designations; finding as moot 732 Motion for Miscellaneous Relief; finding as moot 758 Motion to Compel; finding as moot 759 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (hbo, Dpty Clk) (Entered: 01/06/2012)
770 Joint MOTION for an Order Preliminarily Approving Compromise and Settlement Agreement by AP, Jay Dee Chase, Richard L DeVaughn, Steven Dow, GC, Howard H Hendrick, JA, JB, JP, KT, Wes Lane, Michael L Peck, RJ, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (With attachments) (Dorwart, Frederic) (Entered:

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 100 of 110

01/19/2012 01/23/2012 01/23/2012
01/23/2012 02/06/2012 02/23/2012 02/29/2012
02/29/2012
02/29/2012 02/29/2012 03/08/2012 03/08/2012 03/22/2012

01/09/2012)
771 ATTORNEY APPEARANCE by D Kent Meyers on behalf of All Defendants (Meyers, D) (Entered: 01/19/2012)
772 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Miscellaneous Hearing held on 1/23/2012 (Re: 770 Joint MOTION for an Order Preliminarily Approving Compromise and Settlement Agreement ) (Court Reporter: Terri Beeler) (hbo, Dpty Clk) (Entered: 01/23/2012)
773 Amended MOTION for Order Preliminarily Approving Compromise and Settlement Agreement (Re: 770 Joint MOTION for an Order Preliminarily Approving Compromise and Settlement Agreement ) by AP, Jay Dee Chase, Richard L DeVaughn, Steven Dow, GC, Howard H Hendrick, JA, JB, JP, KT, Wes Lane, Michael L Peck, RJ, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (With attachments) (Dorwart, Frederic) (Entered: 01/23/2012)
774 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Hearing set for 2/29/2012 at 01:30 PM before Judge Gregory K Frizzell); granting 770 Motion for Miscellaneous Relief; granting 773 Motion for Miscellaneous Relief (With attachments) (hbo, Dpty Clk) (Entered: 01/23/2012)
775 ATTORNEY APPEARANCE by Elizabeth Joan Barnett on behalf of All Defendants (Barnett, Elizabeth) (Entered: 02/06/2012)
776 Joint BRIEF Statement in Support of Final Approval of Proposed Class Action Settlement Agreement by AP, Jay Dee Chase, Steven Dow, GC, Howard H Hendrick, JA, JB, JP, KT, Wes Lane, Michael L Peck, RJ, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (Dorwart, Frederic) (Entered: 02/23/2012)
777 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Motion Hearing held on 2/29/2012, striking/terminating deadline(s)/Hearing(s) (Re: 770 Joint MOTION for an Order Preliminarily Approving Compromise and Settlement Agreement, 773 Amended MOTION for Order Preliminarily Approving Compromise and Settlement Agreement ) (Court Reporter: Terri Beeler) (hbo, Dpty Clk) (Additional attachment(s) added on 2/29/2012: # 1 Exhibit) (hbo, Dpty Clk). (Entered: 02/29/2012)
778 ORDER by Judge Gregory K Frizzell Final Order Approving Compromise and Settlement Agreement (Re: 770 Joint MOTION for an Order Preliminarily Approving Compromise and Settlement Agreement, 773 Amended MOTION for Order Preliminarily Approving Compromise and Settlement Agreement ) (hbo, Dpty Clk) (Entered: 02/29/2012)
779 JUDGMENT by Judge Gregory K Frizzell Judgment of Dismissal, entering judgment (terminates case) (hbo, Dpty Clk) (Entered: 02/29/2012)
***Civil Case Terminated (see document number 779 ) (tjc, Dpty Clk) (Entered: 03/01/2012)
780 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) regarding Plaintiffs' Motion for Attorney Fees and Bill of Costs by AP, GC, JA, JB, JP, KT, RJ (Dorwart, Frederic) (Entered: 03/08/2012)
781 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 4/15/2012); granting 780 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (hbo, Dpty Clk) (Entered: 03/08/2012)
782 TRANSCRIPT of Proceedings (Unredacted) of settlement hearing held on 2/29/12 before Chief Judge Gregory K Frizzell (Court Reporter: Terri Beeler) (Pages: 41). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 777 Minutes of Motion Hearing, Striking/Terminating Deadline(s)/Hearing(s)) (tdb, Crt Rptr) Modified on 6/22/2012 to

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 101 of 110

04/11/2012
04/11/2012
05/03/2012 05/21/2012 05/22/2012
06/13/2012 06/15/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/19/2012
07/03/2012
07/03/2012

remove transcript access restriction (a−hc, Dpty Clk). (Entered: 03/22/2012)
783 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 781 Order, Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) by AP, GC, JA, JB, JP, KT, RJ (Dorwart, Frederic) (Entered: 04/11/2012)
784 ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 5/21/2012); granting 783 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (hbo, Dpty Clk) (Entered: 04/11/2012)
785 NOTICE Plaintiffs' Acknowledgement of Final Approval by All Plaintiffs (Lowry, Marcia) (Entered: 05/03/2012)
786 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) by AP, GC, JA, JB, JP, KT, RJ (Dorwart, Frederic) (Entered: 05/21/2012)
787 ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 6/18/2012); granting 786 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (hbo, Dpty Clk) (Entered: 05/22/2012)
788 Unopposed MOTION for Leave to Exceed Page Limitation by All Plaintiffs (Dorwart, Frederic) (Entered: 06/13/2012)
789 ORDER by Chief Judge Gregory K Frizzell ; granting 788 Motion for Leave to Exceed Page Limitation (hbo, Dpty Clk) (Entered: 06/15/2012)
790 MOTION for Attorney Fees and Expenses by All Plaintiffs (Lowry, Marcia) (Entered: 06/18/2012)
791 DECLARATION of Marcia Robinson Lowry (Re: 790 MOTION for Attorney Fees and Expenses ) by All Plaintiffs (With attachments) (Lowry, Marcia) (Entered: 06/18/2012)
792 DECLARATION of Phillip A. Geraci (Re: 790 MOTION for Attorney Fees and Expenses ) by All Plaintiffs (With attachments) (Lowry, Marcia) (Entered: 06/18/2012)
793 DECLARATION of Frederic Dorwart (Re: 790 MOTION for Attorney Fees and Expenses ) by All Plaintiffs (Lowry, Marcia) (Entered: 06/18/2012)
794 DECLARATION of Wayne N. Outten (Re: 790 MOTION for Attorney Fees and Expenses ) by All Plaintiffs (Lowry, Marcia) (Entered: 06/18/2012)
795 DECLARATION of Anne Sublett (Re: 790 MOTION for Attorney Fees and Expenses ) by All Plaintiffs (Lowry, Marcia) (Entered: 06/18/2012)
796 DECLARATION of Paul Naylor (Re: 790 MOTION for Attorney Fees and Expenses ) by All Plaintiffs (Lowry, Marcia) (Entered: 06/18/2012)
797 MINUTE ORDER by Chief Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 790 MOTION for Attorney Fees and Expenses ) (This entry is the Official Order of the Court. No document is attached.) (hbo, Dpty Clk) (Entered: 06/19/2012)
798 MOTION for Extension of Time to Respond to Motion (Re: 790 MOTION for Attorney Fees and Expenses ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Meyers, D) (Entered: 07/03/2012)
799 Amended MOTION for Extension of Time to Respond to Motion (Re: 790 MOTION for Attorney Fees and Expenses, 798 MOTION for Extension of Time to Respond to Motion ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks,

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 102 of 110

07/06/2012 07/09/2012 07/10/2012
07/10/2012
08/03/2012 08/03/2012
08/06/2012
08/06/2012 08/10/2012 08/13/2012 08/17/2012 08/17/2012

Aneta F Wilkinson, George E Young, Sr (Meyers, D) (Entered: 07/03/2012)
800 RESPONSE in Opposition to Motion (Re: 799 Amended MOTION for Extension of Time to Respond to Motion ) by All Plaintiffs ; (Dorwart, Frederic) (Entered: 07/06/2012)
801 MINUTE ORDER by Chief Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 798 MOTION for Extension of Time to Respond to Motion, 799 Amended MOTION for Extension of Time to Respond to Motion ) (This entry is the Official Order of the Court. No document is attached.) (hbo, Dpty Clk) (Entered: 07/09/2012)
802 REPLY to Response to Motion (Re: 799 Amended MOTION for Extension of Time to Respond to Motion ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Meyers, D) (Entered: 07/10/2012)
803 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): Courtroom #2, 3rd floor ( Responses due by 9/10/2012, Replies due by 9/24/2012, Motion Hearing set for 10/3/2012 at 09:30 AM before Magistrate Judge Frank H McCarthy); granting 798 Motion for Extension of Time to Respond to Motion; granting 799 Motion for Extension of Time to Respond to Motion (Re: 790 MOTION for Attorney Fees and Expenses ) (This entry is the Official Order of the Court. No document is attached.) (jcm, Dpty Clk) (Entered: 07/10/2012)
804 MOTION to Compel Production of Documents and Brief in Support by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Meyers, D) (Entered: 08/03/2012)
805 Unopposed MOTION to Expedite Ruling (Re: 804 MOTION to Compel Production of Documents and Brief in Support ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Meyers, D) (Entered: 08/03/2012)
806 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 8/21/2012 at 10:00 AM before Magistrate Judge Frank H McCarthy); granting 805 Motion to Expedite Ruling (Re: 804 MOTION to Compel Production of Documents and Brief in Support ) (This entry is the Official Order of the Court. No document is attached.) (jcm, Dpty Clk) (Entered: 08/06/2012)
807 ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s): ( Responses due by 8/13/2012, Replies due by 8/17/2012) (Re: 804 MOTION to Compel Production of Documents and Brief in Support ) (jcm, Dpty Clk) (Entered: 08/06/2012)
808 RESPONSE in Opposition to Motion (Re: 804 MOTION to Compel Production of Documents and Brief in Support ) by AP, CS, DG, GC, JA, JB, JP, KT, RJ ; (Dorwart, Frederic) Modified on 8/13/2012 to add filers (sac, Dpty Clk). (Entered: 08/10/2012)
NOTICE of Docket Entry Modification; Error: not all filers were selected; Correction: added CS and DG as filers (Re: 808 Response in Opposition to Motion ) (sac, Dpty Clk) (Entered: 08/13/2012)
809 SEALED MOTION (Meyers, D) (Entered: 08/17/2012)
810 REPLY to Response to Motion (Re: 804 MOTION to Compel Production of Documents and Brief in Support ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Meyers, D) (Entered: 08/17/2012)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 103 of 110

08/17/2012 08/21/2012 08/21/2012 08/22/2012
08/22/2012
08/22/2012
08/23/2012 08/24/2012 08/24/2012 08/27/2012 08/30/2012
08/30/2012
08/30/2012 08/31/2012

811 SEALED UNREDACTED VERSION of Dkt # 810 per Local Rule 5.3(b) (Meyers, D) (Entered: 08/17/2012)
812 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 8/21/2012 ; granting in part and denying in part 804 Motion to Compel (Re: 804 MOTION to Compel Production of Documents and Brief in Support ) (Court Reporter: C1) (jcm, Dpty Clk) (Entered: 08/21/2012)
813 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 809 Sealed Motion (This entry is the Official Order of the Court. No document is attached.) (jcm, Dpty Clk) (Entered: 08/21/2012)
814 MOTION for Extension of Time to Respond to Motion (Re: 790 MOTION for Attorney Fees and Expenses ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Meyers, D) Modified on 8/23/2012; This is a two−part motion, see Document # 816 for second event (tjc, Dpty Clk). (Entered: 08/22/2012)
815 MOTION to Expedite Ruling and Brief in Support (Re: 814 MOTION for Extension of Time to Respond to Motion and to Reset Hearing on ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Meyers, D) (Entered: 08/22/2012)
816 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (submitted as part of Doc # 814 ) (Re: 790 MOTION for Attorney Fees and Expenses ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (tjc, Dpty Clk) (Entered: 08/23/2012)
NOTICE of Docket Entry Modification; Error: Document # 814 is a two−part motion, but not all parts were filed; Correction: Filed the second event as Document # 816 (Re: 814 MOTION for Extension of Time to Respond to Motion ) (tjc, Dpty Clk) (Entered: 08/23/2012)
817 NOTICE of Delivery of Sources In Camera to Judge's Chambers (Reference Doc. #812) by All Plaintiffs (Dorwart, Frederic) (Entered: 08/24/2012)
818 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Responses due by 8/29/2012, Replies due by 8/30/2012); granting 815 Motion to Expedite Ruling (Re: 814 MOTION for Extension of Time to Respond to Motion ) (jcm, Dpty Clk) (Entered: 08/24/2012)
819 RESPONSE in Opposition to Motion (Re: 814 MOTION for Extension of Time to Respond to Motion ) by All Plaintiffs ; (Dorwart, Frederic) (Entered: 08/27/2012)
820 REPLY to Response to Motion (Re: 814 MOTION for Extension of Time to Respond to Motion ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Meyers, D) (Entered: 08/30/2012)
821 MOTION to Seal Document (Re: 804 MOTION to Compel Production of Documents and Brief in Support ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Nance, Robert) Modified on 8/31/2012 to seal Exhibits (kjp, Dpty Clk). (Entered: 08/30/2012)
822 SEALED DOCUMENT (Nance, Robert) (Entered: 08/30/2012)
823 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ( Responses due by 10/1/2012, Replies due by 10/15/2012,

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 104 of 110

08/31/2012 09/04/2012 09/05/2012
09/06/2012 09/07/2012 09/10/2012 09/11/2012 09/11/2012 09/13/2012
09/27/2012
09/28/2012 10/01/2012
10/04/2012 10/04/2012

Motion Hearing set for 10/30/2012 at 09:30 AM before Magistrate Judge Frank H McCarthy); granting 814 Motion for Extension of Time to Respond to Motion; granting 816 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 790 MOTION for Attorney Fees and Expenses ) (kjp, Dpty Clk) (Entered: 08/31/2012)
824 ORDER by Magistrate Judge Frank H McCarthy ; sealing document(s); granting 821 Motion to Seal Document(s) (Re: 822 Sealed Document ) (kjp, Dpty Clk) (Entered: 08/31/2012)
825 SEALED MOTION (Dorwart, Frederic) Modified on 9/5/2012 to correct title of event (lml, Dpty Clk). (Entered: 09/04/2012)
826 MINUTE ORDER by Magistrate Judge Frank H McCarthy a response to Sealed Document (dkt. # 822) is due on or before 9/10/12 ; granting 825 Sealed Motion (Re: 822 Sealed Document ) (This entry is the Official Order of the Court. No document is attached.) (crp, Dpty Clk) Modified on 9/6/2012 to correct deadline (crp, Dpty Clk). (Entered: 09/05/2012)
NOTICE of Docket Entry Modification; Error: The Minute Order stated the response is due on 8/10/12; Correction: Corrected text to show response is due 9/10/12 (Re: 822 Sealed Document, 826 Minute Order,, Ruling on Sealed Motion,,, ) (crp, Dpty Clk) (Entered: 09/06/2012)
827 SEALED DOCUMENT (Dorwart, Frederic) (Entered: 09/07/2012)
828 SEALED MOTION (Meyers, D) (Entered: 09/10/2012)
829 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 828 Sealed Motion (This entry is the Official Order of the Court. No document is attached.) (jcm, Dpty Clk) (Entered: 09/11/2012)
830 SEALED DOCUMENT (Meyers, D) (Entered: 09/11/2012)
831 TRANSCRIPT of Proceedings (Unredacted) of Motion Hearing held on 08−21−2012 before Magistrate Judge Frank H McCarthy (Court Reporter: Greg Bloxom) (Pages: 1 − 32). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 812 Minutes of Motion Hearing, Ruling on Motion to Compel) (tgb, Crt Rptr) Modified on 12/12/2012 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 09/13/2012)
832 Unopposed MOTION for Leave to Exceed Page Limitation for Response in Opposition to Plaintiff's Motion for Fees and Expenses by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Meyers, D) (Entered: 09/27/2012)
833 ORDER by Magistrate Judge Frank H McCarthy ; granting 832 Motion for Leave to Exceed Page Limitation (jcm, Dpty Clk) (Entered: 09/28/2012)
834 RESPONSE in Opposition to Motion (Re: 790 MOTION for Attorney Fees and Expenses ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Meyers, D) (Entered: 10/01/2012)
835 SEALED MOTION (Nance, Robert) (Entered: 10/04/2012)
836 MINUTE ORDER by Chief Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 835 SEALED MOTION ) (This entry is the Official Order of the Court. No document is attached.) (hbo, Dpty Clk) (Entered: 10/04/2012)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 105 of 110

10/11/2012 10/17/2012 10/19/2012 10/30/2012 10/31/2012 11/01/2012 11/26/2012
11/26/2012
11/26/2012
12/19/2012

837 REPLY to Response to Motion (Re: 790 MOTION for Attorney Fees and Expenses ) by AP, CS, DG, GC, JA, JB, JP, KT, RJ ; (Dorwart, Frederic) (Entered: 10/11/2012)
838 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 835 Sealed Motion (jcm, Dpty Clk) (Entered: 10/17/2012)
839 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Miscellaneous Hearing held on 10/19/2012 (Court Reporter: Conf Rm) (jcm, Dpty Clk) (Entered: 10/19/2012)
840 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 10/30/2012, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 10/31/2012 at 09:00 AM before Magistrate Judge Frank H McCarthy) (Re: 790 MOTION for Attorney Fees and Expenses ) (Court Reporter: Johanna Smith) (jcm, Dpty Clk) (Entered: 10/30/2012)
841 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 10/29/2012, striking/terminating deadline(s)/Hearing(s), setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 11/1/2012 at 09:00 AM before Magistrate Judge Frank H McCarthy) (Re: 790 MOTION for Attorney Fees and Expenses ) (Court Reporter: Joanna Smith) (jcm, Dpty Clk) Modified on 11/2/2012 to correct entry date (jcm, Dpty Clk). (Entered: 11/01/2012)
842 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy: Motion Hearing held on 11/1/2012, striking/terminating deadline(s)/Hearing(s), taking motion(s) under advisement (Re: 790 MOTION for Attorney Fees and Expenses ) (Court Reporter: Joanna Smith) (jcm, Dpty Clk) (Entered: 11/01/2012)
843 TRANSCRIPT of Proceedings (Unredacted) of Hearing on Motion for Attorneys Fees Vol. I held on 10/30/12 before Magistrate Judge Frank H McCarthy (Court Reporter: Joanna Smith) (Pages: 1−236). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 840 Minutes of Motion Hearing, Setting/Resetting Deadline(s)/Hearing(s)) (lml, Dpty Clk) Modified on 2/26/2013 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 11/26/2012)
844 TRANSCRIPT of Proceedings (Unredacted) of Hearing on Motion for Attorneys Fees Vol. II held on 10/31/12 before Magistrate Judge Frank H McCarthy (Court Reporter: Joanna Smith) (Pages: 237−488). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 841 Minutes of Motion Hearing, Striking/Terminating Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s)) (lml, Dpty Clk) Modified on 2/26/2013 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 11/26/2012)
845 TRANSCRIPT of Proceedings (Unredacted) of Hearing on Motion for Attorneys Fees Vol. III held on 11/1/12 before Magistrate Judge Frank H McCarthy (Court Reporter: Joanna Smith) (Pages: 489−625). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court reporter. (Re: 842 Minutes of Motion Hearing, Striking/Terminating Deadline(s)/Hearing(s), Taking Motion(s) Under Advisement) (lml, Dpty Clk) Modified on 2/26/2013 to remove transcript access restriction (a−hc, Dpty Clk). (Entered: 11/26/2012)
846 REPORT AND RECOMMENDATION by Magistrate Judge Frank H McCarthy (Re: 790 MOTION for Attorney Fees and Expenses ) (jcm, Dpty Clk) (Entered: 12/19/2012)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 106 of 110

12/21/2012
12/21/2012
01/15/2013 01/16/2013
01/30/2013 02/05/2013
02/07/2013
02/07/2013 02/08/2013 02/13/2013 02/19/2013 03/31/2013 04/17/2013

847 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) To File Objections to (Re: 846 REPORT AND RECOMMENDATION by Magistrate Judge Frank H McCarthy ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Meyers, D) (Entered: 12/21/2012)
848 MINUTE ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Objections to R&R due by 1/16/2013); granting in part and denying in part 847 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 846 REPORT AND RECOMMENDATION by Magistrate Judge Frank H McCarthy ) (This entry is the Official Order of the Court. No document is attached.) (cds, Dpty Clk) (Entered: 12/21/2012)
849 Supplemental MOTION for Attorney Fees and Expenses by All Plaintiffs (With attachments) (Dorwart, Frederic) (Entered: 01/15/2013)
850 OBJECTION to Report and Recommendation (Re: 846 REPORT AND RECOMMENDATION by Magistrate Judge Frank H McCarthy ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (With attachments) (Meyers, D) (Entered: 01/16/2013)
851 RESPONSE (Re: 850 Objection to Report and Recommendation, ) by All Plaintiffs (With attachments) (Lowry, Marcia) (Entered: 01/30/2013)
852 RESPONSE in Opposition to Motion (Re: 849 Supplemental MOTION for Attorney Fees and Expenses ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr ; (With attachments) (Meyers, D) (Entered: 02/05/2013)
853 MOTION for Leave to File Defendants' Motion for Leave to Reply in Support of Objections to Report and Recommendation (Re: 851 Response ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Meyers, D) (Entered: 02/07/2013)
854 RESPONSE in Opposition to Motion (Re: 853 MOTION for Leave to File Defendants' Motion for Leave to Reply in Support of Objections to Report and Recommendation ) by All Plaintiffs ; (With attachments) (Lowry, Marcia) (Entered: 02/07/2013)
855 ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Replies due by 2/13/2013); granting 853 Motion for Leave to File Document(s) (Re: 846 REPORT AND RECOMMENDATION by Magistrate Judge Frank H McCarthy ) (hbo, Dpty Clk) (Entered: 02/08/2013)
856 REPLY (Re: 850 Objection to Report and Recommendation, ) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Meyers, D) (Entered: 02/13/2013)
857 REPLY to Response to Motion (Re: 849 Supplemental MOTION for Attorney Fees and Expenses ) by All Plaintiffs ; (With attachments) (Lowry, Marcia) (Entered: 02/19/2013)
858 OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting 790 Motion for Attorney Fees; accepting in part 846 Report and Recommendation (hbo, Dpty Clk) Modified on 4/1/2013 to correct file date (a−hc, Dpty Clk). (Entered: 04/01/2013)
859 JUDGMENT by Chief Judge Gregory K Frizzell , awarding attorney fees to Plaintiffs and against Defendants (hbo, Dpty Clk) (Entered: 04/17/2013)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 107 of 110

05/15/2013 05/16/2013 09/10/2014
09/11/2014
09/23/2014 09/23/2014
10/07/2014 10/07/2014 09/06/2016 09/09/2016
09/12/2016 09/12/2016 05/24/2018 05/24/2018 05/30/2018 05/30/2018 05/30/2018
05/31/2018

860 NOTICE of Settlement by All Plaintiffs (Dorwart, Frederic) (Entered: 05/15/2013)
861 MINUTE ORDER by Chief Judge Gregory K Frizzell ; finding as moot 849 Motion for Attorney Fees (Re: 860 Notice of Settlement ) (This entry is the Official Order of the Court. No document is attached.) (hbo, Dpty Clk) (Entered: 05/16/2013)
862 MOTION to Withdraw Attorney(s) Ira P. Lustbader, William Kapell, Jodi Kim Miller, Laurence Drew Borten, Philip Gellert Barber, Sarah Teresa Russo, Patrick S. Almonrode, and Miriam F. Ingber by All Plaintiffs (Lustbader, Ira) (Entered: 09/10/2014)
863 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Laurence Drew Borten; Miriam F Ingber; William Kapell; Ira P Lustbader; Jodi Kim Miller; Sarah Teresa Russo; Patrick S Almonrode and Philip Gellert Barber ; granting 862 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 09/11/2014)
864 MOTION to Withdraw Attorney(s) Elizabeth Barnett LaBauve by C Brad Henry (Meyers, D) (Entered: 09/23/2014)
865 MINUTE ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Elizabeth Barnett LaBauve ; granting 864 Motion to Withdraw Attorney(s) (This entry is the Official Order of the Court. No document is attached.) (hbo, Dpty Clk) (Entered: 09/23/2014)
866 MOTION for Attorney(s) Sara Robinson−Glasser to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 1085−1369361) by All Plaintiffs (With attachments) (Dorwart, Frederic) (Entered: 10/07/2014)
867 MINUTE ORDER by Chief Judge Gregory K Frizzell ; granting 866 Motion for Admission Pro Hac Vice (This entry is the Official Order of the Court. No document is attached.) (hbo, Dpty Clk) (Entered: 10/07/2014)
868 ***Remark: Letter Received (kjp, Dpty Clk) (Entered: 09/06/2016)
869 MOTION to Withdraw Attorney(s) by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Michael L Peck, Ann M Roberts, Linda English Weeks, Aneta F Wilkinson (Garren, Richard) Modified on 9/12/2016 to delete filer selected in error (srt, Dpty Clk). (Entered: 09/09/2016)
NOTICE of Docket Entry Modification; Error: filer selected in error; Correction: deleted filer selected in error (Re: 869 MOTION to Withdraw Attorney(s) ) (srt, Dpty Clk) (Entered: 09/12/2016)
870 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Richard T Garren ; granting 869 Motion to Withdraw Attorney(s) (kjp, Dpty Clk) (Entered: 09/12/2016)
871 NOTICE of Presentment of Decision of Co−Neutrals for Entry of Judgment (kjp, Dpty Clk) (Entered: 05/24/2018)
872 ORDER by Chief Judge Gregory K Frizzell , setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 5/30/2018) (Re: 871 Notice (Other) ) (kjp, Dpty Clk) (Entered: 05/24/2018)
873 ATTORNEY APPEARANCE by Emily B Fagan on behalf of Oklahoma Department of Human Services [Note: Attorney Emily B Fagan added to party Oklahoma Department of Human Services(pty:dft).] (Fagan, Emily) (Entered: 05/30/2018)
874 ATTORNEY APPEARANCE by Ronald E Baze on behalf of Oklahoma Department of Human Services [Note: Attorney Ronald E Baze added to party Oklahoma Department of Human Services(pty:dft).] (Baze, Ronald) (Entered: 05/30/2018)
875 MOTION to Vacate Pursuant to 9 U.S.C. § 10(a) (Re: 871 Notice (Other) ) by Oklahoma Department of Human Services (With attachments) (Baze, Ronald) Modified on 5/31/2018 to change event pursuant to Order # 876 (kjp, Dpty Clk). (Entered: 05/30/2018)
876 ORDER by Chief Judge Gregory K Frizzell , setting/resetting deadline(s)/hearing(s): ( Responses due by 6/4/2018) (Re: 875 MOTION to Vacate) (kjp, Dpty Clk) (Entered: 05/31/2018)

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 108 of 110

06/01/2018 06/04/2018 06/05/2018 06/05/2018 06/06/2018
06/08/2018
06/08/2018
06/08/2018 06/08/2018 06/14/2018
06/14/2018
06/14/2018 06/14/2018 06/14/2018

877 RESPONSE in Opposition to Motion (Re: 875 ) by All Plaintiffs ; (Dorwart, Frederic) (Entered: 06/01/2018)
878 RESPONSE of the Co−Neutrals' to Motion (Re: 875 ) ; (kjp, Dpty Clk) (Entered: 06/04/2018)
879 ORDER by Chief Judge Gregory K Frizzell ; denying 875 Motion to Vacate Pursuant to 9 U.S.C. § 10(a) (Re: 871 Notice (Other) ) (kjp, Dpty Clk) (Entered: 06/05/2018)
880 JUDGMENT by Chief Judge Gregory K Frizzell adopting decision of the Co−Neutrals (Re: 871 Notice (Other) ) (kjp, Dpty Clk) (Entered: 06/05/2018)
881 MOTION to Withdraw Attorney(s) Joseph Walters for Amicus Curiae Group Homes by American Legion Children's Home, Goodland Academy, Oklahoma Baptist Homes for Children, Oklahoma Lions Boys Ranch, Oklahoma United Methodist Circle of Care, Peppers Ranch, Inc., Sand Springs Children's Home, White Fields, Inc. (Walters, Joseph) (Entered: 06/06/2018)
882 MOTION to Withdraw Attorney(s) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Oklahoma Department of Human Services, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Askew, Thomas) (Entered: 06/08/2018)
883 Amended MOTION to Withdraw Attorney(s) for Amicus Curiae Group Homes and for Removal from the Service List by American Legion Children's Home, Goodland Academy, Oklahoma Baptist Homes for Children, Oklahoma Lions Boys Ranch, Oklahoma United Methodist Circle of Care, Peppers Ranch, Inc., Sand Springs Children's Home, White Fields, Inc. (Walters, Joseph) (Entered: 06/08/2018)
884 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Thomas Martin Askew ; granting 882 Motion to Withdraw Attorney(s) (lah, Chambers) (Entered: 06/08/2018)
885 MINUTE ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Joseph Walters ; finding as moot 881 Motion to Withdraw Attorney(s); granting 883 Motion to Withdraw Attorney(s) (This entry is the Official Order of the Court. No document is attached.) (lah, Chambers) (Entered: 06/08/2018)
886 MOTION to Withdraw Attorney(s) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Oklahoma Department of Human Services, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr [Note: Attorney Donald Mitchell Bingham added to party C Brad Henry(pty:dft), Attorney Donald Mitchell Bingham added to party Oklahoma Department of Human Services(pty:dft).] (Bingham, Donald) (Entered: 06/14/2018)
887 MOTION to Withdraw Attorney(s) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Oklahoma Department of Human Services, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr [Note: Attorney Stephanie L Theban added to party Wayne Cunningham(pty:dft), Attorney Stephanie L Theban added to party Patrice Dills Douglas(pty:dft), Attorney Stephanie L Theban added to party C Brad Henry(pty:dft), Attorney Stephanie L Theban added to party Wes Lane(pty:dft), Attorney Stephanie L Theban added to party Oklahoma Department of Human Services(pty:dft).] (Theban, Stephanie) (Entered: 06/14/2018)
888 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Donald Mitchell Bingham ; granting 886 Motion to Withdraw Attorney(s) (kjp, Dpty Clk) (Entered: 06/14/2018)
889 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Stephanie L Theban ; granting 887 Motion to Withdraw Attorney(s) (kjp, Dpty Clk) (Entered: 06/14/2018)
890 MOTION to Withdraw Attorney(s) David P. Page by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Oklahoma Department of

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 109 of 110

06/14/2018 06/14/2018
06/14/2018 06/15/2018
06/15/2018
06/15/2018 06/15/2018 06/18/2018 06/18/2018 06/18/2018 06/18/2018 06/22/2018 06/27/2018

Human Services, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr [Note: Attorney David Phillip Page added to party Wes Lane(pty:dft), Attorney David Phillip Page added to party Oklahoma Department of Human Services(pty:dft), Attorney David Phillip Page added to party Ann M Roberts(pty:dft), Attorney David Phillip Page added to party Linda English Weeks(pty:dft).] (Page, David) (Entered: 06/14/2018)
891 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney David Phillip Page ; granting 890 Motion to Withdraw Attorney(s) (lah, Chambers) (Entered: 06/14/2018)
892 MOTION to Withdraw Attorney(s) Motion to Withdraw as Counsel for Defendants by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Howard H Hendrick, C Brad Henry, Ronald L Mercer, Michael L Peck, Garoldine Webb, Aneta F Wilkinson, George E Young, Sr [Note: Attorney John Patrick Mensching, Jr added to party Wayne Cunningham(pty:dft), Attorney John Patrick Mensching, Jr added to party C Brad Henry(pty:dft).] (Mensching, John) (Entered: 06/14/2018)
893 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney John Patrick Mensching, Jr ; granting 892 Motion to Withdraw Attorney(s) (lah, Chambers) (Entered: 06/14/2018)
894 MOTION to Withdraw Attorney(s) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Oklahoma Department of Human Services, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr [Note: Attorney Melvin Curtis Hall added to party Steven Dow(pty:dft), Attorney Melvin Curtis Hall added to party C Brad Henry(pty:dft), Attorney Melvin Curtis Hall added to party Wes Lane(pty:dft), Attorney Melvin Curtis Hall added to party Oklahoma Department of Human Services(pty:dft), Attorney Melvin Curtis Hall added to party Ann M Roberts(pty:dft), Attorney Melvin Curtis Hall added to party Linda English Weeks(pty:dft).] (Hall, Melvin) (Entered: 06/15/2018)
895 MOTION to Withdraw Attorney(s) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Nance, Robert) (Entered: 06/15/2018)
896 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Melvin Curtis Hall ; granting 894 Motion to Withdraw Attorney(s) (lah, Chambers) (Entered: 06/15/2018)
897 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Robert Allen Nance ; granting 895 Motion to Withdraw Attorney(s) (lah, Chambers) (Entered: 06/15/2018)
898 MOTION to Withdraw Attorney(s) D. Sharon Gentry by Jay Dee Chase, Richard L DeVaughn, Steven Dow, Howard H Hendrick, Ronald L Mercer, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr (Gentry, Dorothy) (Entered: 06/18/2018)
899 MOTION to Withdraw Attorney(s) by Howard H Hendrick (Koepsel, Kristopher) (Entered: 06/18/2018)
900 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Dorothy Sharon Gentry ; granting 898 Motion to Withdraw Attorney(s) (lah, Chambers) (Entered: 06/18/2018)
901 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Kristopher Edward Koepsel ; granting 899 Motion to Withdraw Attorney(s) (lah, Chambers) (Entered: 06/18/2018)
902 MAIL to John S Cahalan Returned − address has been changed to address unknown. (Re: 884 Order, Adding/Terminating Attorney(s), Ruling on Motion to Withdraw Attorney(s) ) (sc, Dpty Clk) (Entered: 06/27/2018)
903 MAIL to John S Cahalan Returned − address has been changed to address unknown. (Re: 879 Order,, Ruling on Motion to Strike Document(s) ) (sc, Dpty Clk) (Main

USDC ND/OK Case: 4:08-cv-74 As of: 12/25/2018 10:12 AM CST Page 110 of 110

06/29/2018 07/02/2018 07/13/2018
07/13/2018

Document 903 replaced on 11/30/2018 to attach correct PDF) (sc, Dpty Clk). (Entered: 06/27/2018)
904 NOTICE of Compliance by Oklahoma Department of Human Services (Fagan, Emily) (Entered: 06/29/2018)
905 MAIL to John S Cahalan Returned − address has been changed to address unknown. (Re: 897 Order, Adding/Terminating Attorney(s), Ruling on Motion to Withdraw Attorney(s), 901 Order, Adding/Terminating Attorney(s), Ruling on Motion to Withdraw Attorney(s), 900 Order, Adding/Terminating Attorney(s), Ruling on Motion to Withdraw Attorney(s) ) (jln, Dpty Clk) (Entered: 07/03/2018)
906 MOTION to Withdraw Attorney(s) by Jay Dee Chase, Wayne Cunningham, Richard L DeVaughn, Patrice Dills Douglas, Steven Dow, Howard H Hendrick, C Brad Henry, Wes Lane, Ronald L Mercer, Oklahoma Department of Human Services, Michael L Peck, Ann M Roberts, Garoldine Webb, Linda English Weeks, Aneta F Wilkinson, George E Young, Sr [Note: Attorney Donna Marie De Simone added to party C Brad Henry(pty:dft), Attorney Donna Marie De Simone added to party Oklahoma Department of Human Services(pty:dft).] (De Simone, Donna) (Entered: 07/13/2018)
907 ORDER by Chief Judge Gregory K Frizzell ; terminating attorney Donna Marie De Simone ; granting 906 Motion to Withdraw Attorney(s) (kjp, Dpty Clk) (Entered: 07/13/2018)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G., by Next Friend, G. Gail Strickland,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BRAD YARBROUGH,* Chairman of the

)

Oklahoma Commission for Human Services, )

et al.,

)

)

Defendants.

)

Case No. 08-CV-074-GKF-FHM

OPINION AND ORDER Before the court is the Motion to Decertify the Class [Dkt. #558] filed by the defendants, members of the Oklahoma Commission for Human Services and the director of the Oklahoma Department of Human Services (“DHS”). In February 2008, nine Oklahoma foster children (“Named Plaintiffs”), acting through their next friends, filed suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the DHS defendants in their official capacities. They sought certification of a class of foster children in the legal custody of DHS, alleging DHS’s agency-wide foster care policies and practices expose all class members to an impermissible risk of harm in violation of their Fourteenth Amendment right to substantive due process. Additionally, Named Plaintiffs alleged class-wide violations of their Fifth and Fourteenth Amendment rights to procedural due process and liberty and privacy interests under the First, Ninth and Fourteenth Amendments. On May 5, 2009, the court, pursuant to Fed.R.Civ.P. 23, certified the following class:
_________________________________________________________________________________________
* Pursuant to Fed.R.Civ.P. 25(d), Brad Yarbrough is substituted for Richard L. DeVaughn as Chairman of the Oklahoma Commission for Human Services.

All children who are or will be in the legal custody of the Oklahoma Department of Human Services (1) due to a report or suspicion of abuse or neglect; or (2) who are or will be adjudicated deprived due to abuse or neglect. [Dkt. #272 at 17]. In so ruling, the court—accepting as true the allegations of the complaint— found plaintiffs had satisfied the requisites for Rule 23(a) of numerosity, commonality, typicality and adequacy of representation [Id. at 7-11]. Based upon the Statement of Relief [Dkt. #241] filed by plaintiffs pursuant to Shook v. Board of County Commissioners, 543 F.3d 597, 605 (10th Cir. 2008), the court identified at least one common issue of fact: Whether DHS has a policy or practice of failing to adequately monitor the safety of Plaintiff Children causing significant harm and risk of harm to their safety. [Id. at 9]. The court also found that this common issue of fact raised at least one common legal issue: Whether the alleged policies or practices violate plaintiffs’ right to be reasonably free from harm and imminent risk of harm while in state custody. [Id. at 9-10]. The court concluded that at least one remedy sought by Named Plaintiffs—their request for an injunction setting limits on the caseloads of caseworkers and their supervisors—met the requirements of Rule 23(b)(2) and Rule 65(d) for a remedy that is both cohesive and sufficiently specific. [Id. at 13]. The Tenth Circuit affirmed the court’s class certification order on interlocutory appeal. D.G. ex rel Stricklin v. DeVaughn, 594 F.3d 1188, 1195 (10th Cir. 2010). The parties have since conducted and completed classwide discovery. Defendants now urge the court to decertify the class pursuant to Rule 23(c)(1)(C), asserting the evidence adduced does not show commonality under Rule 23(a)(2) or that DHS has “acted or refused to act on grounds that apply generally to the class.” Defendants simultaneously filed a Motion for Summary Judgment on all of plaintiffs’ claims, including the claims at issue in this motion. [Dkt. #561].
2

In General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982), the court observed , “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs’ cause of action.” (quotations and citations omitted). This case is no exception. The factual and legal issues underlying the class certification issue are intertwined, at least to some extent, with the facts and law at issue in defendants’ summary judgment motion.
I. Applicable Legal Standards An order that grants class certification may be altered or amended at any time before final judgment. Fed.R.Civ.P. 23(c)(1)(C). DG, 594 F.3d at 1201-02; Weinman v. Fid. Captial Appreciation Fund, 354 F.3d 1246, 1261 (10th Cir. 2004). While the decision to decertify is discretionary, Id., the court has an obligation to monitor the class decision in light of evidentiary developments in the case. See Anderson v. Boeing Co., 2006 WL 2990383 at *1 (N.D. Okla. October 16, 2006); Beer v. XTO Energy, Inc., 2010 WL 2773311 at *2 (W.D. Okla. July 13, 2010). In its class certification order, the court, as required by law, accepted as true the substantive allegations of plaintiffs’ complaint, See Shook v. El Paso County, 386 F.3d 963, 968 (10th Cir. 2004), and stressed that its decision to certify a class was not a decision on the merits. [Dkt. #272 at 7]. Even at this juncture, the court cannot and will not decide the case on the merits. Lightfoot v. District of Columbia, 273 F.R.D. 314, 323 n. 6 (D.D.C. 2011); Anderson at *2. However, a review of the decision is appropriate at this time in light of the extensive discovery undertaken since the court’s initial certification of the class.
3

Defendants’ post-discovery challenge focuses, once again, on whether the evidence
adduced satisfies Rule 23(a)(2)’s requirement of commonality and the requirements for
cohesiveness and specificity of remedies imposed by Rule 23(b)(2) and Rule 65(d).
Plaintiff Children acknowledge they retain the burden of establishing commonality under
Rule 23(a)(2). [Dkt. #599 at 8]. The finding of commonality requires only a single issue of fact
or law common to the class. J.B. v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999). However,
mere allegations of systemic failures of an agency such as DHS will not suffice; a discrete legal
or factual question common to the class must exist. DG, 594 F.3d at 1195, citing J.B., 186 F.3d
at 1288. The Tenth Circuit will not allow plaintiffs “to broadly conflate a variety of claims to
establish commonality via an allegation of system failures.” J.B., 186 F.3d at 1288-89.
In its ruling denying defendants’ appeal of the court’s class certification order, the Tenth
Circuit instructed, “Rule 23’s certification requirements neither require all class members to
suffer harm nor Name Plaintiffs to prove class members have suffered such harm.” 594 F.3d at
1198. The court stated:
[A] class will often include persons who have not been injured by the defendant’s conduct….Such a possibility or indeed inevitability does not preclude class certification. Rule 23(a) only requires the district court to find a question of fact or law common to all class members. Requiring Named Plaintiffs to prove all class members were inadequately monitored or are actually exposed to a threat of harm due to OKDHS’s monitoring practices at the certification stage would require them to answer the common question of fact or law, rather than just prove it exists. Rule 23(a) does not require the district court to have an answer before certifying a class; Classwide discovery and further litigation answer the question after certification.
Id. (quotations and citations omitted).
Another statement by the Tenth Circuit in this case bears repeating:
Defendants maintain because the evidence presented demonstrated a class member has only a 1.2% chance of being injured, then 98.8% of the putative class is not under an imminent threat of serious harm and, therefore, no issue of fact or law common to its members exists. This argument entirely misses the mark. The
4

“injury” the Named Plaintiffs allege which the district court found constituted a question of fact common to the class is not solely actual abuse or neglect. The injury, instead, includes exposure to an impermissible risk of harm due to OKDHS’s alleged agency-wide failure to monitor class members adequately. That “only” 1.2% of OKDHS foster children actually suffered abuse reveals nothing about how many of those children were not properly monitored and yet survived an unconstitutional risk of abuse or neglect unscathed. Logically, the fact that 1.2% of OKDHS foster children reported abuse or neglect does not mean the rest of the class was not exposed to an impermissible risk of serious harm. In theory, 100% of foster children could live under an imminent threat of serious harm, but only 1.2% ultimately suffer and report abuse or neglect.
Id. Thus, the court is mindful that the issue here is not what percentage of children have actually
suffered abuse while in state custody, but whether and to what extent foster children are at
imminent risk of serious harm.
II. Analysis
A. Applicability of Wal-Mart Decision
Citing Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 254, (June 20, 2011), defendants renew
their argument that Named Plaintiffs have failed to identify any common issues of fact or law.
In Wal-Mart, named plaintiffs sought certification of a nationwide class of some 1.5 million
female employees claiming local managers of Wal-Mart exercised their discretion over pay and
promotions disproportionately in favor of men, and Wal-Mart’s refusal to cabin its managers’
authority amounted to disparate treatment. Id. at 2544. The district court granted plaintiffs’
motion for class certification and the Ninth Circuit substantially affirmed the decision. Id. The
Supreme Court reversed, finding certification of the plaintiff class was not consistent with Rule
23(a)(2). In so ruling, the court observed:
[I]n resolving an individual’s Title VII claim, the crux of the inquiry is the reason for a particular employment decision. Here, respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
5

Id. at 2552. (emphasis in original) (quotation and citation omitted). Wal-Mart had an explicit
policy of nondiscrimination and hiring Id. at 2550-51. The court stated:
Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean that they have all suffered a violation of the same provision of law….Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparateimpact Title VII injury, gives no cause to believe that all their claims can be productively litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
What matters to class certification…is not the raising of common “Questions”— even in droves—but rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
Id. at 2551 (quotations and citations omitted).
In Wal-Mart, plaintiff were unable to identify “some glue holding the alleged reason for
[plaintiffs’ harms] together,” so that the case would be capable of class-wide resolution. Id. at
2552. Defendants assert the same is true in this case. The court disagrees.
Here, as the Tenth Circuit noted, “every class member, by virtue of being in OKDHS
custody, is subject to OKDHS’s monitoring practices or lack thereof…” DG, 594 F.3d at 1197,
and faces harm or imminent risk of harm if the monitoring practices are insufficient. Further,
plaintiffs have identified at least one proposed remedy or “answer”—i.e., an injunction setting
limits on caseloads—that would be common to all plaintiffs.
In Wal-Mart, the court described how the commonality issue must be approached in an
employment discrimination case, pointing out: “[T]here is a wide gap between (1) an
individual’s claim that he has been denied a promotion [or higher pay] on discriminatory
6

grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typical of the class claims.” Id. at 2553, citing Falcon, 457 U.S. at 157-58. The court, citing Falcon, suggested one way plaintiffs could bridge the gap was to show “significant proof” that Wal-Mart operated under a general policy of discrimination. Id.
Based on this statement, defendants suggest plaintiffs must come forward with “significant proof” that DHS has a policy or practice of failing to adequately monitor the safety of plaintiffs, causing significant harm or risk of harm to their safety.
The court is not convinced “significant proof” is required for plaintiffs to resist defendants’ motion to decertify, or whether some lesser standard is required outside of employment discrimination cases.1 However, even assuming “significant proof” is the appropriate standard, the court finds, as set forth below, that plaintiffs have met that standard with respect to the bases upon which the class was initially certified.
B. Failure to Monitor Safety of Children Plaintiffs assert that notwithstanding the official policy of DHS, the agency has an actual practice of failing to adequately monitor the safety of plaintiff children, causing significant harm and risk of harm to their safety. They cite the following evidence in support of their claim:
1. The Oklahoma Commission for Human Services has conceded it makes no attempt monitor children in its custody.
2. DHS caseworker caseloads are excessively high.
1 In Vuyanich v. Republic Bank of Dallas, the court recognized that the standard of proof for satisfying elements required for certification under Rule 223(a) is “ill-defined” and “has not yet [been] articulated by the higher courts.” 505 F. Supp. 224, 239 (N.D. Tex. 1980).
7

3. A large percentage of children are not being visited as required by regulation.
1. Commission’s Alleged Lack of Monitoring Efforts The Oklahoma Commission for Human Services has oversight responsibility for the conduct of the state’s foster care system and is responsible for hiring, firing and setting the salary of the DHS Director. Okla. Const., art. 25, §§ 3-4. Plaintiffs allege the Commission has made no attempt at all to monitor the problems at DHS that result in harm to children. The Commission usually meets monthly for two to three hours. [Dkt. #601-21, Ex. 21, Aneta Wilkinson Dep., 70:14-21; Dkt. #601-22, Ex. 22, Steven Dow Dep., 102:16-20; Dkt. #601-23, Ex. 23, Michael Peck Dep., 88:21-25]. Steven Dow, who was appointed to the Commission after this lawsuit was filed, testified that in his opinion, “the meetings are rather perfunctory and not very engaging with respect to the level of oversight that the Commission is providing.” [Dkt. #601-22, Ex. 22. Dow Dep., 103:15-18]. Commissioners generally do not set the agenda, but consider only the information selected and provided by the Director and senior DHS managers. [Dkt. #601-24, Ex. 24, Hendrick Dep., 29:5-14; Dkt. #601-23, Ex. 23, Peck Dep., 187:15-188:7]. Commissioner Steven Dow testified that in his tenure, the Commission has never inquired about, or been told anything negative about, the performance of DHS’s child welfare operations, or any shortcomings “that we as a Commission ought to know whether self-identified or identified by an outside body.” [Dkt. #601-22, Ex. 22, Dow Dep., 70:21-71:7, 108:4-14]. Director Hendrick testified in recent history no commissioners have asked him for a report on anything relating to child welfare, and no one has come in and talked about any of the department’s data that was troubling to them. [Dkt. 601-24, Ex. 24, Hendrick Dep., 29:15-19, 33:7-13]. Commissioner DeVaughn could not
8

remember whether there have been any reports to the Commission on rate of abuse in care, the number of placements per child, the number of permanency plans put in place by the department, the length of stay in custody of foster children, out-of-county placements, family separations, or the shortage of foster care homes available for children in the custody of the state. [Dkt. #602-2, Ex. 27, DeVaughn Dep., 23:23-25:21]. He testified regarding missed caseworker visits, that “Most all information is presented in forms, but as to getting down to the specific items, I can’t recall…specificity on those.” [Id., 24:23-25:8].
Commissioner Michael Peck did not ask for, nor does he remember receiving, any data on services such as independent-living services provided to children, caseworker visits to children, visits between children and their parents, visits between workers and children’s parents, or worker caseloads. [Dkt. #601-23, Ex. 23, 106:15-107:13]. He does not think the Commission has ever asked for, or been provided with any, updates about DHS’s performance on federal standards for foster children. [Id., 132:19-21]. He has never asked for, nor been given information about abuse and neglect in care for calendar year 2011 to date, and does not know if it is trending up or down. [Id., 145:25-146:8]. He does not recall the Commission asking for, nor receiving, any data on caseworker visitation. [Id., 152:17-20]. He recalls no discussions about placement stability at Commission meetings. [Id., 159:11-14]. There has been no discussion about how DHS is doing on meeting its own policies with respect to visits between children and their parents and between workers and parents. [Id., 175:11-20]. He does not know whether there has recently been overcrowding and overcapacity at the DHS’s two shelters. [Id., 199:25-200:8].
Commissioner Linda Weeks testified she was unaware that from 2005 to 2008, Oklahoma was among the bottom five states in the country on the federal government’s measure
9

of abuse in care. [Dkt. #601-25, Ex. 25, Weeks Dep., 95:12-23]. She was unaware of how the Oklahoma DHS performed in the data on abuse in care for 2009 or 2010. [Id., 96: 8-14]. She cannot recall any discussions about shelters other than the locations of the two shelters DHS has. [Id., 115:18-23].
Commissioner Aneta Wilkinson testified that although she does not have any specific recollection of discussions about caseloads, she is sure there have been discussions, and the discussions would be reflected in minutes of the meetings. [Dkt. #601-21, Ex. 21, Wilkinson Dep., 128:20-129:19]. Similarly, she did not recall discussion about placement and stability at the Commission meetings, but stated they would be reflected in the minutes of the meetings. [Id., 145:14-20].
Commissioner George Young testified commissioners receive monthly reports used to measure the performance of children in the custody of DHS. [Dkt. #602-1, Ex. 26, Young Dep., 27:16-25]. He did not think the reports included a rate of abuse in care. [Id., 28:22-29:1].
Commissioner Dow does not recall any discussion of child welfare worker caseloads at the Commission’s meetings. [Dkt. #601-22, Ex. 22, 176:2-5]. He has not asked for, nor been given any, information by DHS that would help him evaluate caseload levels, although he believes he could ask for the information. [Id., 176-:22-177:6]. Dow recalls no discussion at Commission meetings about worker/parent or worker/child contacts or whether those policy expectations are being met. [Id., 194:7-14; 195:4-6].
The Commission never inquired about, and was never informed of, the outcome of DHS’s most recent federal CFSR [Dkt. #601-24, Ex. 24, Hendrick Dep., 138:7-21; Dkt. #602-2, Ex. 27, DeVaughn Dep., 64:22-65:1; Dkt. #601-22, Ex. 22, Dow Dep., 73:4-8; 75:9-17; Dkt. #601-25, Ex. 25, Weeks Dep., 52:14-18; Dkt. #602-1, Ex. 26, Dkt. #601-2, Ex. 21, Dkt. #601-24:133:9-
10

23; 135:7-14, 138:7-21].Wilkinson Dep., 57:6-19; Young Dep., 45:7-15, 48:6-11; 102:11-103:4, 103:20-15]. Nor did commissioners ask about, or receive information about, the February 2009 Performance Audit of DHS commissioned by the state legislature, although commissioners were told about legislative proposed changes. [Dkt. #601-24, Ex. 24, Hendrick Dep., 143:13-144:9, 150:24-151:12; Dkt. #601-23, Ex. 23, Peck Dep., 133:13-18, 134:4-17; Dkt. #602-1, Ex. 26, Young Dep., 43:2-13, 86:4-12].
In accordance with state law, DHS was accredited by the Council on Accreditation (“COA”) from 1985 to 2002. [10A O.S. § 1-9-105(A)(4); Dkt. #602-3, Ex. 28, Letter from COA to Hendrick, COA-5-00012]. In September 2002, DHS chose not to renew its accreditation. [Dkt. #602-3, Ex. 28, Letter from Hendrick to COA, COA-5-00010]. The Oklahoma DHS remains unaccredited to date. [Dkt. #600, Plaintiffs’ Statement of Additional Material Fact ¶6]. Current commissioners were unaware of the statute requiring COA accreditation or DHS’s violation of it, although the Commission at the time was. [Dkt. #601-24, Ex. 24, Hendrick Dep., 128:12-129:2; Dkt. #602-2, Ex. 27, DeVaughn Dep., 77:24-78:3, 78:16-23, 83:4-19; Dkt. #60122, Ex. 22, Dow Dep., 217:10-23; Dkt. #601-23, Ex. 23, Peck Dep., 203:23-204:15; Dkt. #60125, Ex. 25, Weeks Dep., 128:25-129:2; Dkt. #601-21, Ex. 21, Wilkinson Dep., 213:23-214:6; 214:15-21, 215:1-6; Dkt. #602-1, Ex. 26, Young Dep., 55:15-24, 56:24-57:3, 57:14-15, 61:2562:4, 62:16-17].
Finally, plaintiffs’ expert John Goad opines that in no fewer than 64 (19%) and as many as 157 (46%) of 343 DHS investigations into reports of maltreatment of foster children during 2009, the investigators’ findings were flawed. [Dkt. #610-2, Ex. 31, Goad Report, pp. 37-38].
11

This, plaintiffs contend, is additional evidence of defendants’ failure to exercise professional judgment.2
2. Child Welfare Worker Caseloads DHS managers and Commissioners admit that manageable caseloads for child welfare workers are important to ensure that children are kept safe from harm. [Dkt. #601-22, Ex. 22, Dow Dep., 175:16-176:1; Dkt. #602-25, Ex. 49, Gary Miller Dep., 229:19-230:6; Dkt. #603-2, Ex. 52, Deborah Smith Dep., 144:16-145:3; Dkt. #603-3, Ex. 53, Joanie Webster Dep., 48:17-25, 51:14-52:5, 52:19-53:13; Dkt. #601-25, Ex. 25, Weeks Dep., 39:5-40:3; Dkt. #601-3, Ex. 3, Amy White Dep., 184:14-24; Dkt. #601-21, Ex. 21, Wilkinson Dep., 16:6-15, 127:17-23; Dkt. #603-4, Ex. 54, Marq Youngblodd Dep., 224:15-23; Dkt. #601-23, Ex. 23, Peck, 38:1-3, 38:12-39:2]. Similarly, both plaintiffs’ and defendants’ experts acknowledge the importance of reasonable caseloads in protecting foster children. [Dkt. #603-5, Ex. 55, Affid. of Peg Hess, PhD, ACSW, ¶6(a); Dkt. #601-2, Ex. 2, Viola Miller, Ed.D. Report, 34, 37; Dkt. #603-6, Ex. 56, Larry Brown Dep., 85:15-86:16; Dkt. #720-1, Ex. 29, Arnold-Williams Dep., 141:8-142:12]. Extensive child welfare research links high caseloads to poor decision making, increased turnover and worse outcomes for children. [Dkt. #604-2, Ex. 77, U.S. General Accounting Office, Report to Congressional Requesters, Child Welfare: HHS Could Play a Greater Role in Helping Child Welfare Agencies Recruit and Retain Staff, pp. 3-4, 14, 19-21; Dkt. #604-3, Ex. 7, D. DePanfilis, H. Girvin, Investigating child maltreatment in out-of-home care: Barriers to effective decision-making, 27 Children & Youth Services Rev. 353-374 (2005), pp. 367-370; Dkt. #604-4, Ex. 79, D.J. English et al., Factors That Influence the Decision Not to Substantiate a CPS Referral—Phase II: Mail and Telephone Surveys of Child Protective Services Social
2 The issue of abuse in care rates is more fully discussed in § II.C.1. below.
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Workers (2002), p. 97; Dkt. #604-5, Ex. 80, Am. Public Human Services Ass’n, Report From the 2004 Child Welfare Workforce Survey: State Agency Findings (2005), p. 46; Dkt. #604-6, Ex. 81, , Social Work Policy Institute, High Caseloads: How do they Impact Delivery of Health and Human Services? (2010); Dkt. #604-7, Ex. 82, H. Lawson et al., Retention Planning to Reduce Workforce Turnover in New York State’s Public Child Welfare Systems (2005), pp. 11, 41.
COA standards provide that permanency planning worker caseloads should not exceed 18 children or 8 children with special needs. [Dkt. #600, Plaintiffs’ Statement of Additional Material Facts, ¶25 and Dkt. #602-3, Ex. 28, PA-FC 19.06, PA-KC 16.06]. CWLA sets out similar standards. [Dkt. #603-7, Ex. 57, CWLA Standards for Foster Care Services, § 3.48, KC § 4.20].
Every child in DHS custody is assigned a “primary” caseworker who is located in the county of juvenile court jurisdiction. When a child is placed outside the county of court jurisdiction, the child is also assigned a “secondary” worker in the county of placement. OAC §§ 340:75-1-29, 340:75-6-48. DHS managers have testified that both primary and secondary workers have equal and important responsibilities and both must be taken into account when calculating workers’ caseloads. [Dkt. #603-8, Ex. 58, Johnson Dep., 85:3-20, 115:13-118:3; Dkt. #603-2, Ex. 52, D. Smith Dep., 145:4-23; Dkt. #601-3, Ex.3, White Dep. (5/12/11), 188:17189:9]. As of May 2011, 41% of children in DHS custody were placed outside the county of court jurisdiction. [Dkt. #603-10, Ex. 60, DHS Placement Summary, Y1617A-00380-81].
DHS’s “YI743 report” as of March 2011 shows that more than 5,300 children in out-ofhome care (68% of the total number of such children) had a primary caseworker whose caseload was greater than 20 children; more than 3,000 children had a primary worker whose caseload was greater than 25 children; and more than 1,200 children had a primary caseworker whose
13

caseload was more than 30 children. [Dkt. #600, Plaintiffs’ Statement of Additional Material Facts, ¶34 and Dkt. #603-15, Ex. 65, YI743 Report “built on December, 10, 2010”].
Larry Johnson, Director of the DHS Field Operations Division (“FOD”), acknowledged that another report he uses to track average worker caseloads—referred to as the Combined Workload Report (“CWR”)—omits entire categories of assignments from its calculation of average workloads, and thus understates the average number of children assigned to permanency planning workers [Dkt. #600, Plaintiffs’ Statement of Additional Material Facts, ¶¶29-30].
Defendants’ own expert, Robin Arnold-Williams, concluded that DHS does not accurately measure caseloads and that its caseloads exceed professionally accepted standards. [Dkt.601-10, Ex. 10, Arnold-Williams Report, at 5]. Commissioners Peck and Weeks admit that worker caseloads are too high. [Dkt. #601-23, Ex. 23, Peck Dep.,146:17-148:6, 151:4-9, 212:624; Dkt. #601-25, Ex. 25, Weeks Dep., 62:16-64:2.
Defendants’ expert Robin Arnold-Williams testified issues with caseloads continue [Dkt. #720-1, Ex. 29, Arnold-Williams Dep., 144:18-19], that caseloads need to be reduced [Id., 145:21-145:2], that current reporting practices hamper effective caseload and workload monitoring [Id., 150:15-151:3], and that in her opinion, “the best professional judgment would be to seek more staff and to...reduce [caseloads] down lower, which I have recommended in [my report]. [Id., 216:16-217:19]. Defendants’ expert Larry Brown opined that individual caseload or workload levels are, at this point, known only “at an individual unit level.” [Dkt. #603-6, Ex. 56, Larry Brown Dep., 85:6-10], that “there is no systematic way that the central office here—or in Oklahoma City can know that information,” [Id., 87:4-21], that Johnson “doesn’t have the data that he needs to manage the system,” and “[h]e’s working to develop a report to give him that information,” and “those are positive steps that demonstrate to me that there’s reasonable
14

exercise of some professional judgment that’s being shown here.” [Id., 103:13-104:1]. In her report, plaintiffs’ expert Viola P. Miller opined that caseworkers were inadequately supervised and staff turnover is excessive. [Dkt. #601-2, Ex. 2, Miller Report].
3. DHS Case Worker Visits Federal law requires monthly visits between caseworkers and children in foster care. 42 U.S.C. § 624(2)(A). DHS policy also requires visits with each foster child a minimum of one time per month, with no less than two visits per quarter in the foster placement. 168 Okla. Admin. Code (“OAC”) 340:75-6-48. Each child is to be interviewed, or if an infant observed, alone without the foster parent present at least one time per quarter. Id. DHS Commissioners and managers and experts on both sides admit worker-child visitation is important, that it is critical for the same worker to visit the child each month and that the visit should include one-on-one interactions with the child as well as observation of the child’s interactions with others. [Dkt. #601-24, Ex. #24, Howard Hendrick Depo., 173:8-18; 174:12-175:10; 175:21-176:1; Dkt. #603-8, Ex. #58, Larry Johnson Depo., 59:11-60:10; Dkt. #601-23, Ex. #23, Michael Peck Depo., 37:4-25, 151:20-23, 152:2-11; Dkt. #601-25, Ex. #25, Linda Weeks Depo., 35:7-24, 36:23-25, 62:16-63:1; Dkt. #601-3, Ex. #3, Amy White Depo., 318:19-23; Dkt. #601-21, Ex. 21, Aneta Wilkinson Depo., 15:17-16:5; Dkt. #602-1, Ex. #26, George Young Depo., 36:13-25, 95:23-25, 97:9-15, 98:3-1; Dkt. #603-4, Ex. #54, Marq Youngblood Depo., 213:9-24; Dkt. #602-4, Ex. 29, Robin Arnold-Williams Depo., 195:25196:14; Dkt. #601-16, Viola Miller Depo., 141:24-142:5; Dkt. #601-1, Foster Care Case Review of the OKDHS by Center for the Support of Families (CSF), Inc., p.70]. Additionally, the federal government has found an association between caseworker visits and positive outcomes for children. [Dkt. #606-4, Ex. 129, Results of the 2007 and 2008 Child and Family Services
15

Reviews at 22-24; Dkt. #606-5, Ex. 130, “52 Program Improvement Plans—Strategies for Improving Child Welfare Services and Outcomes,” at 36-38; Dkt. #606-6, Ex. 131, GAO Child Welfare report, at 24-25, 33].
Plaintiffs contend in practice, however, the requisite visits are not occurring. Larry Johnson, Director of the DHS Field Operations Division (“FOD”), stated in his declaration that the FOD is responsible for accurate and timely delivery of services to eligible clients of the CFSD, the Family Support Services Division and the AIDS Coordination Information Service. [Dkt. #558, Ex. 8, Decl. of Larry Johnson, ¶2]. Approximately 1,000 of 3,700 FOD staff are child welfare workers. [Id.]. DHS keeps track of the number of visits or “contacts” of its workers with foster children. A copy of the report is attached to his declaration and referred to as Ex. 15-1, Contacts Report June 2011, run July 10, 2011. [Id., ¶3]. Johnson states that between 90% and 96% of children living in their own homes while in foster care jurisdiction received the required visits; between 96% and 98.6% of children in therapeutic foster care (“TCF”) placements received the required visits. Of the 20 or fewer children in unpaid relative placements each month, between 90% and 100% received the required visits each month. Johnson states that data regularly kept by DHS indicate that, since July 2000, DHS workers have made monthly visits to children in foster care due a visit over 90% of the time. Since January 2007, data shows DHS workers have made more than 95% of monthly visits in all but two months. In those months, 94.2% and 94.9% of visits were made. [Id., ¶3].
However, the report, “Caseworker Visits: Visited Every Month (Required Federal Reporting),” shows that 3,707 children—32% of all children in out-of-home care for at least one month as of December 2010—did not receive all 12 monthly visits due that year. [Dkt. #600, Plaintiff’s Statement of Additional Material Facts ¶64; Dkt. #606-7, Ex. 132]. Defendants’
16

expert, Robin Arnold-Williams, recommends in her report that DHS should “[c]ontinue progress meeting federal expectations in the area of monthly visitation between case workers and children. [Dkt. #601-10, Ex. 10, A Review of Management of OKDHS’s Child Welfare System, Robin Arnold-Williams, D.S.W. at 7, 58].
Plaintiffs assert, “In light of the large number and percentage of children whom DHS workers have failed to visit, it is fair to say that all members of the Plaintiff Class are at risk of being assigned to a caseworker who will miss a required visit.”
The Tenth Circuit, in affirming the class certification decision, rejected an argument by DHS that because a child in custody of the state has less than a 2% chance of being injured there is a dearth of commonality. As the appellate court noted, the injury alleged in this case is “not solely actual abuse or neglect,” but includes “exposure to an impermissible risk of harm.” The court finds plaintiffs have presented “significant proof” of exposure to an impermissible risk of harm.
The court finds that plaintiffs have presented “significant proof” that DHS has a policy or practice of failing to adequately monitor the safety of plaintiff children causing significant harm and risk of harm to their safety. In so finding, the court stresses that it is not making a finding that DHS in fact has such a policy or practice; rather, the court merely concludes Plaintiff Children have met the burden described in Wal-Mart to survive defendants’ motion to decertify the class. A determination on the merits of the claim still lies ahead.
C. Other Alleged Common Issues of Fact and Law Plaintiffs allege the evidence shows the existence of other common issues of fact and law, including: (1) Whether DHS is subjecting Plaintiff Children to an impermissible level and risk of abuse and neglect while in state custody; (2) whether DHS has failed to develop a
17

sufficient number and array of placement resources; (3) whether DHS has a practice of subjecting Plaintiff Children to impermissibly frequent placement moves; and (4) whether DHS has a practice of subjecting Plaintiff Children to excessively long stays in state custody. The remaining issues are considered below.
1. Abuse in Care Named Plaintiffs assert the issue of whether DHS subjects foster children to an impermissible level and risk of abuse and neglect while in state custody presents a common question of fact suitable for class certification. The federal government tracks the rate at which children are abused or neglected while in state foster care (the “abuse-in-care rate”). The rate is calculated by taking the number of child victims of maltreatment perpetrated by foster parents and facility staff, and dividing it by the number of children served in foster care during the reporting year. [Dkt. #602-12, Ex. 36, Child Maltreatment 2009, p. 24]. Plaintiffs have presented evidence that for every year from federal fiscal year (“FFY”) 2002 through FFY 2010, DHS’s reported rate at which children in its custody are being maltreated (the “abuse-in-care rate”) has been 1.54 to 3.97 times greater than the federal standard, and was among the five highest reported rates in the country from FFY 2002 through FFY 2008. [Dkt. #602-13, Ex. 37 NCANDS-DP-00001; Dkt. #602-14, Ex. 38 State-CFSR2007-09956; Dkt. #602-15, Ex. 39, CDSR.PIP.Huckabee-00004, Dkt. #602-16, Dkt. #602-16, Ex. 40, CSFR.PIP.Farjardo-00002; Dkt. #601-2, Ex. 5 HindmanB-012423; ]. From FFY 2002 to FFY 2008, DHS’s reported abuse-in-care rate was among the five highest reporting jurisdictions in the country. [Dkt. #602-19, Ex. 43 PLAINTIFFS 01220.1-01220.2; Dkt. #602-20, Ex. 44 Children’s Bureau, Child Maltreatment 2004, 64; Dkt. #602-12, Ex. 36, Child Maltreatment
18

2009, 53]. Additionally, Director Hendrick testified DHS does not report to the federal government any instances of maltreatment committed by facility staff members. [Id., ¶13 and Ex. 24, Hendrick Dep. 70:13-24]. Thus, plaintiffs assert, the DHS is under-reporting abuse-incare rates. Defendants acknowledge that at least 154 children in 2009 and 80 children in 2010 were maltreated by facility staff. [Id., ¶14 and Ex. 45 Lee Decl. ¶¶1-2]. If the 154 children had been included in DHS’s reported abuse-in-care data for 2009, DHS would have reported a total of 241 children abused by foster parents and facility staff during that year, setting DHS’s abusein-care rate at 1.58%--almost five times the federal standard. Likewise, if the other 80 children had been included in DHS’s reported abuse-in-care data for FFY 2010, DHS would have reported a total of 183 children abused by foster parents and facility staff during that year, setting DHS’s abuse-in-care rate at 1.41%--more than four times the federal standard. [Id., Ex. 37 NCANDS-DP-00002]. The number reported by DHS also does not include children abused by their birth parents while in DHS custody. [Dkt. #561, Ex. 18, ¶9]. Defendant’s expert Barclay testified that such maltreatment should be considered to obtain a fuller picture of abuse in care. [Dkt. #601-9, Ex. 9, Barclay Dep., 162:7-15]. According to DHS data, 210 children in FFY 2009 and another 191 children in FFY 2010 were maltreated by their birth parents while in DHS custody. [Dkt. #561, Ex. 18-2 Row XI].
After this lawsuit was filed, Director Hendrick directed DHS to conduct an “administrative review” of all reports of maltreatment in care already substantiated by DHS’s CPS staff. The administrative review continues to date. [Dkt. #602-22, Ex. 46, Margaret Devault Dep., 145:19-146:7; Dkt, #602-23, Ex. 47, Debra Knecht Dep., 13:5-15, 33:223-34:3; Dkt. #605-2, Ex. 102 (Dep. Ex. 605)]. The reviewers were allegedly instructed to reverse any substantiated findings of child maltreatment they believed were decided incorrectly, or where
19

there was insufficient information in the case file. [Dkt. #602-22, Ex. 46, Devault Dep., 145:19146:7; Dkt. #602-23, Ex. 47, Knecht Dep, 30:6-20]. Since DHS does not include unsubstantiated reports in this process, the review’s results can only lower its abuse-in-care rate. [Dkt. #602-22, Ex. 46, DeVault Dep., 121:18-122:10; Dkt. #602-23, Ex. 47, Knecht Dep., 30:6-20; Dkt. #60225, Ex. 49, Gary Miller Dep., 231:25-233:14]. At least 61 substantiated findings of child maltreatment involving foster parents were reversed between 2008 and 2010. [Dkt. #602-22, Ex. 46, DeValut Dep., 131:25-132:2; Dkt. #602-23, Ex. 47, Knecht Dep., 15:7-23]. Defendants’ experts Dr. John Fluke and Andrew Barclay, as well as Margaret DeVault, the former Program Administrator of DHS’s Prevention and Protection Unit, admitted that if DHS’s goal is to determine the accuracy of its reported abuse in care, both substantiated and unsubstantiated findings must be reviewed. [Dkt. #602-22, Ex. 46, DeVault Dep., 122:4-15; Dkt. #602-7, Ex. 32, John Fluke Dep., 215:25-216:23; Dkt. #601-9, Ex. 9, Andrew Barclay Dep., 93:12-22].
The question of whether the abuse in care rate is excessive (or whether it is even accurately tracked) is closely related to the common issue of whether defendants have failed to adequately monitor the safety of foster children. Indeed, the agency’s ability to accurately track instances of abuse inevitably impacts the efficacy of its monitoring efforts. It is an issue that affects foster children on a class wide basis and for which a class wide remedy—i.e., improved investigatory techniques and reporting—is conceivable. Moreover, the proposed remedy is both cohesive and sufficiently specific. Therefore, the court finds this issue is appropriate for class certification.
2. Number and Array of Placements/Impermissibly Frequent Placement Moves In its order granting plaintiffs’ motion to certify, the court stated: [T]he question whether DHS has a policy or practice of subjecting plaintiffs to unreasonably frequent moves from placement to placement causing significant
20

harm and risk of harm to plaintiffs’ health and well-being is not common to all children because many, perhaps the majority, of children in foster care are not subjected to frequent moves. [Dkt. #272 at 9]. The court remains unpersuaded that the allegation of impermissibly frequent placement moves presents a common question of fact. Likewise, the alleged inadequacy of placement options lacks commonality. Moreover, these issues do not necessarily give rise to the legal question presented by inadequate monitoring—that is, whether the alleged policies or practices violate plaintiffs’ right to be reasonably free from harm and imminent risk of harm while in state custody. It is fairly easy to “connect the dots” between situations in which child welfare workers have excessive caseloads, miss required visits with children, or fail to properly investigate suspected abuse or neglect with resulting harm or risk of harm to children. The relationship between frequent placement moves or limited placement options and the safety of children is more attenuated. While these two factors could lead to less than ideal placements, they do not necessarily put a child in harm’s way. Therefore, the court finds these two issues do not present common questions of fact or law.
3. Excessive Stays in State Custody Plaintiffs also urge the court to certify the class based on the question of whether defendants’ policies and practices subject foster children to excessively long stays in state custody. However, this issue—like the issues of placement options and excessive placement moves—fails to meet the commonality requirement. Most children are not subjected to excessively long stays in state custody, and the connection between long stays and harm or risk of harm to children is much more attenuated than, for example, the connection between inadequate investigations into reports of abuse and resultant harm or risk of harm to children. Therefore, the court declines to expand class certification to this issue.
21

III. Conclusion For the foregoing reasons, defendants’ Motion to Decertify the Class [Dkt. #558] is denied. The class remains certified on the question of whether DHS has a policy or practice of failing to adequately monitor the safety of Plaintiff Children causing significant harm and risk of harm to their safety. Additionally, the class is certified on the question of whether DHS is subjecting Plaintiff Children to an impermissible level and risk of abuse and neglect while in state custody. ENTERED this 15th day of November, 2011.
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 Case 4:08-cv-00074-GKF-FHM Document 329 Filed in USDC ND/OK on 03/02/10 Page 1 of 2 Case: 09-5093 Document: 01018375830 Date Filed: 03/02/2010 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
March 02, 2010

Douglas E. Cressler Chief Deputy Clerk

Mr. Philip Lombardi United States District Court for the Northern District of Oklahoma Office of the Clerk 333 West 4th Street Room 411 Tulsa, OK 74103-0000
RE: 09-5093, DG, et al v. DeVaughn, et al Dist docket: 4:08-CV-00074-GKF-FHM
Dear Clerk:
Please be advised that the mandate for this case has issued today. Please file accordingly in the records of your court or agency.
Please contact this office if you have questions.
Sincerely,

cc: Thomas M. Askew Andrew Belkin Bauer Donald M. Bingham Stephen Louis Cortes Bruce W. Day Paul DeMuro Donna Marie DeSimone Frederic Dorwart Joe Earl Edwards

Elisabeth A. Shumaker Clerk of the Court

Case 4:08-cv-00074-GKF-FHM Document 329 Filed in USDC ND/OK on 03/02/10 Page 2 of 2 Case: 09-5093 Document: 01018375830 Date Filed: 03/02/2010 Page: 2
Richard W. Freeman Jr. Jeremiah Lee Frei-Pearson Phillip A. Geraci Scott A. Graham Yasmin Grewal-Kok Melvin C. Hall Holly Hillerman William Kapell Kristopher E. Koepsel Marcia Lowry Ira P. Lustbader John Patrick Mensching Jr. Robert A. Nance Catherine Ann O'Leary Richard A. Resetaritz R. Thomas Seymour Joseph William Strealy Joseph Walters Gena E. Wiltsek
EAS/cp
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G., by Next Friend G. Gail Strickland et al., )

)

Plaintiffs,

)

)

v.

)

)

BRAD YARBROUGH, Chairman of the

)

Oklahoma Commission for Human Services, )

et al.,

)

)

Defendants.

)

Case No. 08-CV-074-GKF-FHM

OPINION AND ORDER
Before the court is the Motion for Summary Judgment [Dkt. #561] filed by the defendants, members of the Oklahoma Commission for Human Services and the director of the Oklahoma Department of Human Services (“DHS”). This class action was filed pursuant to 42 U.S.C. § 1983 on behalf of all foster children in the legal custody of DHS. Plaintiff children sued defendants in their official capacities, alleging policies and procedures adopted and approved by defendants have subjected foster children to significant, ongoing harm and risk of harm, deprivation of the chance for safe and stable childhoods and violation of their constitutional and statutory rights. Three Section 1983 claims remain in this lawsuit:1
1. Plaintiffs’ first cause of action for violation of plaintiff children’s substantive due process rights under the Fourteenth Amendment to be free from harm and risk of harm;
1 In their Complaint, plaintiffs also asserted claims for violation of the Federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 621 et seq., and breach of federal contractual obligations to third party beneficiaries. [Dkt. #2]. The court granted defendants’ motion to dismiss those claims. [Dkt. #220].
1

2. Plaintiff’s second cause of action for violation of plaintiff children’s liberty and privacy rights guaranteed by the First, Ninth and Fourteenth Amendments; and
3. Plaintiffs’ fourth cause of action for violation of plaintiff children’s procedural due process rights under the Fifth and Fourteenth Amendments based on deprivation of state law entitlements.
On May 5, 2009, the court, pursuant to Fed.R.Civ.P. 23, certified the following class: All children who are or will be in the legal custody of the Oklahoma Department of Human Services (1) due to a report or suspicion of abuse or neglect; or (2) who are or will be adjudicated deprived due to abuse or neglect. [Dkt. #272 at 17]. The court, in certifying the class, found plaintiffs had satisfied the requisites for Rule 23(a) of numerosity, commonality, typicality and adequacy of representation. On November 15, 2011, the court denied defendants’ Motion to Decertify the Class. [Dkt. #727]. Defendants seek summary judgment on all remaining claims.
I. Material Facts The Oklahoma Commission for Human Services (the “Commission”) has oversight responsibility for formulating the policies and adopting the rules and regulations for the administration of the Oklahoma Department of Human Services (“DHS”) and for appointing the director of DHS. [Dkt. #2, Complaint, ¶32; Dkt. #227, Answer, ¶1.32; Okla. Const. art. 25, §§ 3, 4]. Each year, the governor appoints one of nine members of the Commission for a term of nine years. Okla. Const. art. 25, §§ 3, 4. Defendant Brad Yarbrough is now Chairman of the Commission. [Dkt. #2, ¶32; Dkt. #227, ¶1.32]. Defendant Aneta Wilkinson is now Vice-Chairman of the Commission. [Dkt. #2, ¶32; Dkt. #227, ¶1.41]. Jay Dee Chase, Steven Dow, Linda English Weeks, Michael L. Peck and Anne M. Roberts are currently members of the Commission. 2 [Dkt. #2, ¶¶34-40; Dkt. #227,
2 At the time the lawsuit was filed, Richard L. DeVaughn was Chairman and Ronald C. Mercer was Vice Chairman of the Commission, and Aneta Wilkinson, Jay Dee Chase, Patrice Dills
2

¶¶1.34-1.40]. Defendant Howard H. Hendrick is the Director of the Department of Human Services. [Dkt. #2, ¶41; Dkt. #227, ¶1.41].
At the time this case was brought, more than 10,000 foster children in Oklahoma were in the legal custody of DHS. [Dkt. #2, ¶1]. In their Complaint, plaintiffs alleged children who require placement in foster care are the most vulnerable members of Oklahoma society. They are found in the four corners of the State; they come from cities, suburbs and rural areas. [Dkt. #2, ¶2; Dkt. #227, ¶1.2]. They stated, “In all cases, these children find themselves in DHS custody as a result of desperate and extreme circumstances that threaten their ability to live normal childhoods, to grow and develop and, in many instances, to even survive.” [Dkt. #2, ¶3; Dkt. #227, ¶1.3].
Under the Oklahoma Children’s Code, state district courts take jurisdiction over children who are or who are alleged to be abused or neglected. 10A O.S. § 1-4-101(A). Courts participate in many decisions regarding abused or neglected children. 10A O.S. §§ 1-4101(A)(2)(b), 1-4-201(A)(2); 1-4-202, 1-4-102(C), 1-4-205(C), 1-4-206, 1-4-601, 1-4-703, 1-4706(A)(4), 1-4-706(B)(2)(a), 1-4-707, 1-4-709, 1-4-806, 1-4-811, 1-4-904.
The rules promulgated by the Commission are included in the Oklahoma Administrative Code (“OAC”) 340: Chapter 75. Child Welfare. The Child and Family Services Division (“CFSD”) of the DHS provides professional advice to the DHS for the making of child welfare policy, supports child welfare workers in the field by providing professional advice regarding policy and implementation, provides Continuous Quality Improvement (“CGQI”) for child welfare and manages the KIDS computer system. [Dkt. #561-19 Ex. 18-1, Decl. of Deborah G.
Douglas, Michael L. Peck, Garoldine Webb and Rev. George E. Young were members of the Commission.
3

Smith, MSW, ¶2]. KIDS is one of only nine federally approved State Automated Child Welfare Systems (“SACWIS”) in the nation. [Id.]. Professional Child Welfare staff of the CFSD consult, and have consulted, with the Commission’s policy committee to ensure that newly promulgated rules are professionally sound. [Id., ¶3]. The rules and “Instructions to Staff” for each such rule are available on line at http://www.okdhs.org/library/policy/oac340/075/. [Id.]. The rules on the website contain links to related statutes and the Instructions to Staff to assist workers seeking additional information about particular aspects of the rule. [Id.].
A. Commission Oversight The Commission usually meets monthly for two to three hours. [Dkt. #601-21, Ex. 21, Aneta Wilkinson Dep., 70:14-21; Dkt. #601-22, Ex. 22, Steven Dow Dep., 102:16-20; Dkt. #601-23, Ex. 23, Michael Peck Dep., 88:21-25]. Steven Dow, who was appointed to the Commission after this lawsuit was filed, testified that in his opinion, “the meetings are rather perfunctory and not very engaging with respect to the level of oversight that the Commission is providing.” [Dkt. #601-22, Ex. 22. Dow Dep., 103:15-18]. Commissioners generally do not set the agenda, but consider only the information selected and provided by the Director and senior DHS managers. [Dkt. #601-24, Ex. 24, Hendrick Dep., 29:5-14; Dkt. #601-23, Ex. 23, Peck Dep., 187:15-188:7]. Commissioner Dow testified that in his tenure, the Commission has never been told anything negative about the performance of DHS’s child welfare operations, or any shortcomings “that we as a Commission ought to know whether self-identified or identified by an outside body.” [Dkt. #601-22, Ex. 22, Dow Dep., 70:21-71:7, 108:4-14]. Director Hendrick testified in recent history no other person has come in and talked to the Commissioners about any of the department’s data or practices that was troubling to them. [Dkt. 601-24, Ex. 24, Hendrick Dep., 33:7-13]. Commissioner
4

DeVaughn could not remember whether there have been any reports to the Commission on rate of abuse in care, the number of placements per child, the number of permanency plans put in place by the department, the length of stay in custody of foster children, out-of-county placements, family separations, or the shortage of foster care homes available for children in the custody of the state. [Dkt. #602-2, Ex. 27, DeVaughn Dep., 23:23-25:21]. He testified regarding missed caseworker visits, that “Most all information is presented in forms, but as to getting down to the specific items, I can’t recall…specificity on those.” [Id., 24:23-25:8].
Commissioner Michael Peck does not remember receiving any data on services such as independent-living services provided to children, caseworker visits to children, visits between children and their parents, visits between workers and children’s parents, or worker caseloads. [Dkt. #601-23, Ex. 23, 106:15-107:13]. He does not think the Commission has ever been provided with any updates about DHS’s performance on federal standards for foster children. [Id., 132:19-21]. He does not remember asking for, or being given information about, abuse and neglect in care for calendar year 2011 to date, and does not know if it is trending up or down. [Id., 145:25-146:8]. He does not recall the Commission receiving any data on caseworker visitation. [Id., 152:17-20]. He recalls no discussions about placement stability at Commission meetings. [Id., 159:11-14]. There has been no discussion about how DHS is doing on meeting its own policies with respect to visits between children and their parents and between workers and parents. [Id., 175:11-20]. He does not know whether there has recently been overcrowding and overcapacity at the DHS’s two shelters. [Id., 199:25-200:8].
Commissioner Linda Weeks testified she was unaware that from 2005 to 2008, Oklahoma was among the bottom five states in the country on the federal government’s measure of abuse in care. [Dkt. #601-25, Ex. 25, Weeks Dep., 95:12-23]. She was unaware of how the
5

Oklahoma DHS performed in the data on abuse in care for 2009 or 2010. [Id., 96: 8-14]. She cannot recall any discussions about shelters other than the locations of the two shelters DHS has. [Id., 115:18-23].
Commissioner Aneta Wilkinson testified that although she does not have any specific recollection of discussions about caseloads, she is sure there have been discussions, and the discussions would be reflected in minutes of the meetings. [Dkt. #601-21, Ex. 21, Wilkinson Dep., 128:20-129:19]. Similarly, she did not recall discussion about placement and stability at the Commission meetings, but stated they would be reflected in the minutes of the meetings. [Id., 145:14-20].
Commissioner George Young testified commissioners receive monthly reports used to measure the performance of children in the custody of DHS. [Dkt. #602-1, Ex. 26, Young Dep., 27:16-25]. He did not think the reports included a rate of abuse in care. [Id., 28:22-29:1].
Commissioner Dow does not recall any discussion of child welfare worker caseloads at the Commissions meetings. [Dkt. #601-22, Ex. 22, 176:2-5]. He has not asked for, nor been given, any information by DHS that would help him evaluate caseload levels, although he believes he could ask for the information. [Id., 176:22-177:6]. Dow recalls no discussion at Commission meetings about worker/parent or worker/child contacts or whether those policy expectations are being met. [Id., 194:7-14; 195:4-6].
In accordance with state law, DHS was accredited by the Council on Accreditation (“COA”) from 1985 to 2002. [10A O.S. § 1-9-105(A)(4); Dkt. #602-3, Ex. 28, Lettter from COA to Hendrick, COA-5-00012]. In September 2002, DHS chose not to renew its accreditation. [Dkt. #602-3, Ex. 28, Letter from Hendrick to COA, COA-5-00010]. The Oklahoma DHS remains unaccredited to date. [Dkt. #600, Plaintiffs’ Statement of Additional
6

Material Fact ¶6]. Current commissioners were unaware of the Oklahoma statute requiring COA
accreditation or DHS’s violation of it, although the Commission at the time was. [Dkt. #601-24,
Ex. 24, Hendrick Dep., 128:12-129:2; Dkt. #602-2, Ex. 27, DeVaughn Dep., 77:24-78:3, 78:16-
23, 83:4-19; Dkt. #601-22, Ex. 22, Dow Dep., 217:10-23; Dkt. #601-23, Ex. 23, Peck Dep.,
203:23-204:15; Dkt. #601-25, Ex. 25, Weeks Dep., 128:25-129:2; Dkt. #601-21, Ex. 21,
Wilkinson Dep., 213:23-214:6; 214:15-21, 215:1-6; Dkt. #602-1, Ex. 26, Young Dep., 55:15-24,
56:24-57:3, 57:14-15, 61:25-62:4, 62:16-17].
Finally, plaintiffs’ expert John Goad opines that no fewer than 64 (18.6%) and as many as
157 (45.8%) of 343 DHS investigations into reports of maltreatment of foster children during
2009, the investigators’ findings were flawed. [Dkt. #610-2, Ex. 31, Goad Report, pp. 37-38].
Plaintiffs contend this is additional evidence of defendants’ failure to exercise professional judgment.3
B. Use of Objective Standards in Child Welfare
Plaintiffs’ expert, John Goad, A.M., stated in his report:
CWLA and COA standards generally describe reasonable practice. Who would suggest that it is reasonable for CPS investigations to be anything but thorough, that it is acceptable for foster parents to have violent criminal backgrounds, or that foster children should be seen any less often than once per month? Child welfare caseloads that exceed the standards are not reasonable because they prevent caseworkers from effectively doing the work necessary to achieve safety, permanency and well-being for the children who depend on them.
Considering the importance of child welfare services to the children who receive them, it is not possible to reasonably conclude that child welfare agencies should be held to any lesser standard than those that have been established by the CWLA and the COA. If airline pilots were held only to standards of mediocrity, no one would choose to fly. The difference is that children have no choice about their involvement with the child welfare system.
3 The issue of abuse in care rates is more fully discussed in § I(C) below. 7

[Dkt. #610-2, Ex.31, Report of John Goad, A.M., p. 4]. Defendants’ expert John D. Fluke testified he believes information about whether an agency has complied with its own policies and standards, coupled with an examination of outcomes, is useful in determining whether the agency is doing its job. [Dkt. #602-7, Ex. 32, John Flukes Dep., 205:10-15].
In March 2008, the federal government reported that DHS failed to meet all six CFSR national standards reviewed and also failed to meet all seven safety, permanency, and well-being outcomes. [Dkt. #602-8, Ex. 33, Final Report, Oklahoma Child and Family Services Review, March 2008].
C. Abuse in Care The federal government tracks the rate at which children are abused or neglected while in state foster care (the “abuse-in-care rate”). The rate is calculated by taking the number of child victims of maltreatment perpetrated by foster parents and facility staff, and dividing it by the number of children served in foster care during the reporting year. [Dkt. #602-12, Ex. 36,Child Maltreatment 2009, p. 24]. For every year from federal fiscal year (“FFY”) 2002 through FFY 2010, DHS’s abusein-care rate has been 1.54 to 3.97 times greater than the federal standard. [Dkt. #600, Plaintiffs’ Statement of Additional Material Facts, ¶12 and Ex. 37, NCANDS-DP-00001; Ex. 38, Dkt. #602-14 at 2; Ex. 39, Dkt. #602-15 at 2; Ex. 40, Dkt. #602-16 at 9; Ex. 5, Dkt. #602-5 at 3.] From FFY 2002 to FFY 2008, DHS’s reported abuse-in-care rate was among the five highest reporting jurisdictions in the country. [Id., ¶12 and Ex. 43 PLAINTIFFS 01220.1-01220.2; Ex. 44 Children’s Bureau, Child Maltreatment 2004, 64; Ex. 36, Child Maltreatment 2009, 53]. Additionally, DHS does not report to the federal government any instances of maltreatment committed by facility staff members. [Dkt. #600, Plaintiff’s Statement of
8

Additional Material Facts, ¶13 and Ex. 24, Hendrick Dep. 70:13-24]. Defendants acknowledge that at least 154 children in 2009 and 80 children in 2010 were maltreated by facility staff. [Id., ¶14 and Ex. 45 Lee Decl. ¶¶1-2]. If the 154 children had been included in DHS’s reported abuse-in-care data for 2009, DHS would have reported a total of 241 children abused by foster parents and facility staff during that year, setting DHS’s abuse-in-care rate at 1.58%--almost five times the federal standard. Likewise, if the other 80 children had been included in DHS’s reported abuse-in-care data for FFY 2010, DHS would have reported a total of 183 children abused by foster parents and facility staff during that year, setting DHS’s abuse-in-care rate at 1.41%--more than four times the federal standard. [Id., Ex. 37 NCANDS-DP-00001].
The number reported by DHS also does not include children abused by their birth parents while in DHS custody. [Dkt. #601-9, Andrew Barclay Dep., 161:15-162:3]. Defendants’ expert Andrew Barclay testified that such maltreatment should be considered to obtain a fuller picture of abuse-in-care. [Id., 162:7-15]. According to DHS data, 210 children in FFY 2009 and another 191 children in FFY 2010 were maltreated by their birth parents while in DHS custody. [Dkt. #561, Ex. 18-2 Row XI].
D. Worker Caseloads DHS managers and Commissioners admit that manageable caseloads for child welfare workers are important to ensure that children are kept safe from harm. [Dkt. #601-22, Ex. 22, Dow Dep., 175:16-176:1; Dkt. #602-25, Ex. 49, Gary Miller Dep., 229:19-230:6; Dkt. #603-2, Ex. 52, Deborah Smith Dep., 144:16-145:3; Dkt. #603-3, Ex. 53, Joanie Webster Dep., 48:1749:18, 51:14-52:5, 52:19-53:13; Dkt. #601-25, Ex. 25, Weeks Dep., 39:5-40:3; Dkt. #601-3, Ex. 3, Amy White Dep., 184:14-24; Dkt. #603-4, Ex. 54, Marq Youngblood Dep., 224:15-23; Dkt. #601-23, Ex. 23, Peck, 38:1-39:2]. Similarly, both plaintiffs’ and defendants’ experts
9

acknowledge the importance of reasonable caseloads in protecting foster children. [Dkt. #603-5, Ex. 55, Affid. of Peg Hess, PhD, ACSW, ¶7(a); Dkt. #601-2, Ex. 2, Viola Miller, Ed.D. Report, 34, 37; Dkt. #603-6, Ex. 56, Larry Brown Dep., 85:15-86:16; Dkt. #720-1, Ex. 29, Robin Arnold-Williams Dep., 141:8-142:12].
Extensive child welfare research links high caseloads to poor decision making, increased turnover and worse outcomes for children. [Dkt. #604-2, Ex. 77, U.S. General Accounting Office, Report to Congressional Requesters, Child Welfare: HHS Could Play a Greater Role in Helping Child Welfare Agencies Recruit and Retain Staff, pp. 3-4, 14, 19-21; Dkt. #604-3, Ex. 78, D. DePanfilis, H. Girvin, Investigating child maltreatment in out-of-home care: Barriers to effective decision-making, 27 Children & Youth Services Rev. 353-374 (2005), pp. 367-370; Dkt. #604-4, Ex. 79, D.J. English et al., Factors That Influence the Decision Not to Substantiate a CPS Referral—Phase II: Mail and Telephone Surveys of Child Protective Services Social Workers (2002), p. 97; Dkt. #604-5, Ex. 80, Am. Public Human Services Ass’n, Report From the 2004 Child Welfare Workforce Survey: State Agency Findings (2005), p. 46; Dkt. #604-6, Ex. 81, Social Work Policy Institute, High Caseloads: How do they Impact Delivery of Health and Human Services? (2010); Dkt. #604-7, Ex. 82, H. Lawson et al., Retention Planning to Reduce Workforce Turnover in New York State’s Public Child Welfare Systems (2005), pp. 11, 41].
COA standards provide that permanency planning worker caseloads should not exceed 18 children or 8 children with special needs. [Dkt. #600, Plaintiffs’ Statement of Additional Material Facts, ¶25 and Dkt. #602-3, Ex. 28, PA-FC 19.06, PA-KC 16.06]. CWLA sets out similar standards. [Dkt. #603-7, Ex. 57, CWLA Standards for Foster Care Services, § 3.48, KC § 4.20].
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Every child in DHS custody is assigned a “primary” caseworker who is located in the county of juvenile court jurisdiction. When a child is placed outside the county of court jurisdiction, the child is also assigned a “secondary” worker in the county of placement. OAC §§ 340:75-1-29, 340:75-6-48. DHS managers have testified that both primary and secondary workers have equal and important responsibilities and both must be taken into account when calculating workers’ caseloads. [Dkt. #603-8, Ex. 58, Johnson Dep., 85:3-20, 115:13-118:3; Dkt. #603-2, Ex. 52, D. Smith Dep., 145:4-23; Dkt. #601-3, Ex.3, White Dep. (5/12/11), 188:17189:9]. As of May 2011, 41% of children in DHS custody were placed outside the county of court jurisdiction. [Dkt. #603-10, Ex. 60, DHS Placement Summary, Y1617A-00380-81].
DHS’s “YI743 report” as of March 2011 shows that more than 5,300 children in out-ofhome care (68% of the total number of such children) had a primary caseworker whose caseload was greater than 20 children; more than 3,000 children had a primary worker whose caseload was greater than 25 children; and more than 1,200 children had a primary caseworker whose caseload was more than 30 children. [Dkt. #600, Plaintiffs’ Statement of Additional Material Facts, ¶34 and Dkt. #603-15, Ex. 65, YI743 Report “built on December 7, 2010”].
Larry Johnson, Director of the DHS Field Operations Division (“FOD”), acknowledged that another report he uses to track average worker caseloads—referred to as the Combined Workload Report (“CWR”)—omits some part of the caseloads from its calculation of average workloads, and thus understates the average number of children assigned to permanency planning workers for at least some counties. [Dkt. #603-11, Ex. 61, Combined Workload Report; Dkt. #603-8, Ex. 58, Larry Johnson Dep., 75:13-20, 101:22-24, 108:7-20; 110:10-111:1, 112:24-113:22, 114:13-18].
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Defendants’ own expert, Robin Arnold-Williams, concluded that DHS does not accurately measure caseloads and that its caseloads exceed generally accepted levels. [Dkt. #601-10, Ex. 10, Arnold-Williams Report, pp. 5-6].
Dr. Arnold-Williams testified issues with caseloads continue [Dkt. #720-1, Ex. 29, Arnold-Williams Dep., 144:18-19], that caseloads in Oklahoma have to be reduced [Id., 145:21145:2], that current reporting practices hamper effective caseload and workload monitoring [Id., 150:15-151:3], and that in her opinion, “the best professional judgment would be to seek more staff and to...reduce [caseloads] down lower, which I have recommended in [my report]. [Id., 216:16-217:19]. Defendants’ expert Larry Brown opined that individual caseload or workload levels are, at this point, known only “at an individual unit level.” [Dkt. #603-6, Ex. 56, Larry Brown Dep., 85:6-10], that “there is no systematic way that the central office here—or in Oklahoma City can know that information,” [Id., 87:4-21], that Johnson “doesn’t have the data that he needs to manage the system,” that “[h]e’s working to develop a report to give him that information,” and “[t]hose are positive steps that demonstrate to me that there’s reasonable exercise of some professional judgment that’s being shown here.” [Id., 103:13-104:1]. In her report, plaintiffs’ expert Viola P. Miller opined that caseworkers were inadequately supervised and staff turnover is excessive. [Dkt. #601-2, Ex. 2, Miller Report at pp. 45-50].
E. Worker-Child Visitation Federal law requires states to have a plan for child welfare services that describes the state standards for frequency of caseworker visits, which, at a minimum, ensures that children in foster care are visited by a caseworker on a monthly basis. 42 U.S.C. § 622(b)(17). DHS policy also requires visits with each foster child a minimum of one time per month, with no less than two visits per quarter in the foster placement. Ex. 168, Okla. Admin. Code (“OAC”) 340:75-6-
12

48. Each child is to be interviewed, or if an infant observed, alone without the foster parent present at least one time per quarter. Id.
DHS Commissioners and managers, and experts on both sides, admit worker-child visitation is important, that it is important for the same worker to visit the child each month and that the visit should include one-on-one interactions with the child as well as observation of the child’s interactions with others. [Dkt. #601-24, Ex. #24, Howard Hendrick Depo., 173:8-176:1; Dkt. #603-8, Ex. #58, Larry Johnson Depo., 59:11-60:10; Dkt. #601-23, Ex. #23, Michael Peck Depo., 37:4-25, 151:20-152:11; Dkt. #601-25, Ex. #25, Linda Weeks Depo., 35:7-36:25; Dkt. #601-21, Ex. 21, Aneta Wilkinson Depo., 15:17-16:5; Dkt. #603-4, Ex. #54, Marq Youngblood Depo., 213:9-24; Dkt. #720-1, Ex. 29, Robin Arnold-Williams Depo., 195:25-196:14; Dkt. #6011, Foster Care Case Review of the OKDHS by Center for the Support of Families (CSF), Inc., p.70]. Additionally, the federal government has found an association between caseworker visits (with children and parents) and positive outcomes for children. [Dkt. #606-4, Ex. 129, Results of the 2007 and 2008 Child and Family Services Reviews at 22-24; Dkt. #606-5, Ex. 130, “52 Program Improvement Plans—Strategies for Improving Child Welfare Services and Outcomes,” at 36-38; Dkt. #606-6, Ex. 131, GAO Child Welfare report, at 24-25, 38.
Plaintiffs contend in practice, however, the requisite visits are not occurring. Larry Johnson, Director of the DHS Field Operations Division (“FOD”), stated in his declaration that the FOD is responsible for accurate and timely delivery of services to eligible clients of the CFSD, the Family Support Services Division and the AIDS Coordination Information Service. [Dkt. #558, Ex. 8, Decl. of Larry Johnson, ¶2]. Approximately 1,000 of 3,700 FOD staff are child welfare workers. [Id.]. DHS keeps track of the number of visits or “contacts” of its workers with foster children. A copy of the report is attached to his declaration and referred to
13

as Ex. 15-1, Contacts Report June 2011, run July 10, 2011. [Id., ¶3]. Johnson states that between 90% and 96% of children living in their own homes while in foster care jurisdiction received the required visits; between 96% and 98.6% of children in therapeutic foster care (“TCF”) placements received the required visits. Of the 20 or fewer children in unpaid relative placements each month, between 90% and 100% received the required visits each month. Johnson states that data regularly kept by DHS indicated that, since July 2000, DHS workers have made monthly visits to children in foster care due a visit over 90% of the time. Since January 2007, data shows DHS workers have made more than 95% of monthly visits in all but two months. In those months, 94.2% and 94.9% of visits were made. [Id., ¶3].
However, the report, “Caseworker Visits: Visited Every Month (Required Federal Reporting),” shows that 3,707 children—32% of all children in out-of-home care for at least one month as of December 2010—missed at least one monthly visit due that year (as contrasted with the federal standard of only 10%). [Dkt. #600, Plaintiff’s Statement of Additional Material Facts ¶64; Dkt. #606-7, Ex. 132]. Defendants’ expert, Robin Arnold-Williams, recommends in her report that DHS should “[c]ontinue progress meeting federal expectations in the area of monthly visitation between case workers and children.” [Dkt. #601-10, Ex. 10, A Review of Management of OKDHS’s Child Welfare System, Robin Arnold-Williams, D.S.W. at 7, 58].
F. Number and Array of Placement Resources According to DHS policy, recruiting an adequate number of resource families for children in DHS custody “is a crucial component for providing safe home environments for children requiring out-of-home placement” and ensures that children live near their birth families; placements meet children’s unique needs; and sibling groups remain together. O.A.C. § 340:75-7-10].
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DHS reports from 2005 to 2009 show that the ratio of foster homes to children ranged from 0.28 to 0.32. In 2009, there were 2,978 approved homes and 9,887 children, a ratio of 0.30. [Dkt. #601-6, Ex. 6, Oklahoma Foster Care Data Summary 2009, BR-Grant-00070]. Commissioner Weeks testified there is a shortage of foster homes in Oklahoma. [Dkt. #61-25, Ex. 25, Weeks Dep., 73:2-74:8]. Commissioner Dow testified there are concerns about whether DHS has an adequate number of foster care homes. [Dkt. #601-22, Ex. 22, 204:24-206:4, 207:12-19].
Director Hendrick testified there is a shortage of foster homes due to a high number of adoptions by foster parents since June of 2008, which has reduced the number of foster homes available. [Dkt. #601-24, Ex. 24, Hendrick Dep., 191:2-193:6]. Annette Burleigh, a program manager with DHS, testified that DHS does not have enough therapeutic foster homes for children in its custody. [Dkt. #604-8, Ex.83, Annette Burleigh Dep., 82:13-83:4]. Deborah Goodman testified the number of adoptive homes is inadequate for the number of foster children with a goal of adoption. [Dkt. #604-9, Ex. 84, Goodman Dep., 249:13-251:16]. Deborah Smith testified there was a concern about overuse of shelters, and DHS needs more foster homes. [Dkt. #603-2, Ex. 52, D. Smith Dep., 52:24-53:5]. DHS programs administrator Joannie Webster testified DHS does not have an adequate number of emergency foster care homes available [Dkt. #604-10, Ex. 85, Joannie Webster Dep., 199:1-6, 212:25-213] and there is a shortage of foster homes, although the type of shortages vary from county to county. [Id., 212:23-213:10].
DHS grant documents, evaluations by and for the federal government, and analysis by third parties recognize the long-standing issue of lack of adequate placement resources. [Doc. #604-12, Ex. 87, Diligent Recruitment of Families for Children in the Foster Care System, May 29, 2008 grant application, #68&69-BR-Grant-1-00039; Dkt. #604-17, Ex. 92, Family
15

Connection Discretionary Grants, OKB-Prog Nar-7.1.09-00018; Dkt. #601-6, Ex. 6, BR-Grant00173, 00291, 00829; Dkt. #604-13, Ex. 88, DRG-BTF-Eval-10.09 to 3.10-00001; Dkt. #604-14, Ex. 89, H_Hendrick-Docs-2008-00271; Dkt. #604-15, Ex. 90, PIP Strategy Summary and TA Plan, PLAINTIFFS 07519, 07521; Dkt. #602-17, Ex. 41, Child and Family Services Review Program Improvement Plan, CFSR-PIP-2008-Rev 10.12.09-00023, 00025; Dkt. #602-18, Ex. 42, HC Franklin OKPIP Reminders and Talking Points, pp. 5, 7; Dkt. #601-14, Ex. 14, Performance Audit by Hornby Zeller Associates, Inc., p. 13].
DHS often maintains waiting lists for group homes [Dkt. #604-10, Ex. 85, Webster Dep., 163:6-164:2, Dkt. #604-20, Ex. 95, Monthly Waiting List Repts., pp. 8, 9, 35, 50, 65, 74, 89] and emergency foster care homes. [Dkt. #604-10, Ex. 85, Webster Dep., 198:3-199:6; Dkt. #604-17, Ex. 92, Family Connection Discretionary Grants, OKB-Prog Nar-7.1.09-00006]. Although DHS does not maintain a centralized waiting list for therapeutic foster homes, the responsible DHS manager acknowledged that “as long as I’ve been in the position I don’t believe we’ve had enough therapeutic foster homes.” [Dkt. #604-8, Ex. 83, Burleigh Dep., 82:6-83:4].
DHS has acknowledged placement availability “as a major issue in stability of placements and appropriate placements for children in out-of-home care. Generally placements are made based on available space rather than the individual needs of the child, skills of the foster parents or both.” [Dkt. #604-17, Ex. 92, OKB-Prog Nar-7.1.09-00018]. Due to the large number of children entering emergency custody in Oklahoma’s two metropolitan counties, DHS is not always able to meet its goal of placing children under six years of age in emergency foster care within 24 hours of shelter admission. [Id., OKB-Prog Nar-7.1.09-00006]. In addition, there are times when children have to stay in emergency foster care in excess of the intended limit of
16

30 days because of a shortage of regular foster homes. [Dkt. #604-10, Ex. 85, Webster Dep., 188:18-189:1].
Plaintiffs’ expert Peg M. Hess has opined that DHS has an “extreme placement shortage, including both an insufficient number and range of placements for children in custody,” which has led to “dangerous and inappropriate placements.” [Dkt. #610-1, Ex. 19, Hess Report, 111; Dkt. #610-3, Ex. 103, Hess Supp. Report, 80].
G. Use of Shelters Senior DHS managers and Commissioners admit that overall shelter use and length of shelter stays should be minimized because it is not in the child’s interest to remain in a shelter, shelters cannot meet all of children’s needs and children are better off in family-like settings. [Dkt. #602-25, Ex. 49, Miller Dep., 95:14-97:11, 101:23-102:6; Dkt. #601-23, Ex. 23, Peck Dep., 190:4-8; Dkt. #603-2, Ex. 52, D. Smith Dep., 67:18-24; Dkt. #605-4, Ex. 104, Nancy Thompson Dep., 122:9-19; Dkt. #604-1, Ex. 85, Webster Dep., 197:10-12; Dkt. #601-25, Ex. 25, Weeks Dep., 114:20-23; 115:8-17; Dkt. #601-21, Ex. 21, Wilkinson Dep., 156:4-157:5; Dkt. #601-22, Ex. 22, Dow Dep., 197:17-198:4]. Defendants’ expert Dr. Arnold-Williams recommends that DHS reduce its use of shelters. [Dkt. #601-10, Ex. 10, p. 57]. According to plaintiffs’ expert Dr. Miller, the overuse of emergency placements, including shelters, by DHS is harmful to children. Specifically, “widespread use of temporary placements harms children by jeopardizing their ability to form the emotional attachments that are crucial for their development.” [Ex. 2, Miller Rep., p. 65]. According to DHS reports, the number of children placed in the two DHS-operated shelters has declined from 5,230 in 2006 to 3,167 in 2010. [Dkt. #605-13, Ex. 113, Shelter PopAggregate Nos-00005]. However, the average daily shelter population has recently trended
17

upward, from 53 in May 2010 to 104 in May 2011. [Id., Shelter Pop-Aggregate Nos-00008]. According to DHS reports, in 2010, 24% (3,009 of 12,429) of the children in DHS custody were placed in a shelter. [Dkt. #605-11, Ex. 111, YI613-00181; Dkt. #603-1, Ex. 51, YI624-11267]. In 2010, 635 shelter placements lasted longer than 30 days. [Dkt. #603-1, Ex. 51, YI624-11266].
H. Placement Stability A stated objective in Oklahoma law is to “promote stability for foster children and limit repeated movement of such foster children from one foster placement to another.” 10A O.S. § 14-805(C). Senior DHS managers, Commissioners and DHS documents acknowledge that frequent placement moves and disruptions interrupt schooling, impair the ability of children to form attachments, and lead them to lack trust in adults [Dkt. #604-1, Ex. 76, Debra Clour Dep., 115:9-24; Dkt. #603-3, Ex. 53, Webster Dep., 38:18-39:12; Dkt. #605-14, Ex.114, Patricia Howell Dep., 122:4-14; Dkt. #602-25 Ex.49, Miller Dep., 145:15-24; Dkt. #603-2, Ex. 52, D. Smith Dep., 139:11-21; Dkt. #601-24, Ex. 24, Hendrick Dep., 163:17-164:7; Dkt. #601-21, Ex. 21, Wilkinson Dep., 144:8-145:13; Dkt. #601-22, Ex. 22, Dow Dep., 183:17-184:25; Dkt. #60123, Peck Dep., 122:6-9]. Defendants’ expert Dr. Katherine Casillas admitted that multiple placements can contribute to, and exacerbate, children’s pathologies. [Dkt. #605-5, Ex. 105, Katherine Casillas Dep., 54:15-55:4; 79:12-17]. Plaintiffs’ expert Dr. Hess opines that “[w]hen placement changes are numerous and frequent, such as those experienced by all seven plaintiff children, they create an intolerable level of caregiver discontinuity, accompanied by chronic grief, development regression, and other developmental and emotional problems. [Dkt. #610-3, Ex. 103, Hess Report, p. 88]. According to data reported to the federal government, in FFY 2008 and 2009, Oklahoma ranked 45th out of 51 jurisdictions nationwide on the Placement Stability measure. [Dkt. #605-
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24, Ex. 124, OK-08-08b09a-DP2.23.10-00012; Dkt. #605-25, Ex. 125, PLAINTIFFS 06949]. According to DHS reports, 26% of children who had been in out-of-home care for less than 12 months had three or more placements in FFY 2009; in FFY 2010, that number rose to 28% (approximately double the federal benchmark of 13%). [Dkt. #606-1, Ex. 126, CFSR-PO-P1.200027, 43]. According to DHS reports, the number of children in DHS custody who had more than 20 placements was 150 as of March 2010, and increased to 164 as of March 2011. [Dkt. #606-2, Ex. 127].
DHS managers and commissioners have expressed concern about DHS’s performance regarding placement stability. [Dkt. #601-22, Ex. 22, Dow Dep., 186:6-188:6; 190:1-13; Dkt. #602-25, Ex. 49, G. Miller Dep., 147:25-148:10; Dkt. #603-2, Ex. 52, D. Smith Dep., 140:19141:11; Dkt. #601-23, Ex. 23, Peck Dep., 163:17-164:7; Dkt. #604-14, Ex. 89, H_HendrickDocs-2008-00272].
I. Maintenance of Family Connections According to DHS policy, “[t]he child and parent(s) have a right to regular visitation” with each other more than once a month. “Visitation is the single most predictive factor in whether a child is successfully reunified.” O.A.C. § 340:75-6-30. DHS managers recognize it is important to have frequent, consistent and substantive parent-child interactions. [Dkt. #602-25, Ex. 49, G. Miller Dep., 154:1-156:1; Dkt. #601-3, Ex. 3, White Dep., 269:16-270:24]. DHS representatives stated at a 2009 conference addressing placement stability that parent-child visits lessen children’s anxiety, depression and behavior problems. [Dkt. #605-15, Ex. 115,CFSR-PIP-2009TO2011-QR-00053, 106]. According to DHS reports, from 2008 to 2010, between 85% to 88% of parent-child visits were not completed. [Dkt. #607-17, Ex.167, YI624-05991; Dkt. #607-14, Ex. 164, YI624-
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00008; Dkt. #603-1, Ex. 51, YI624-11271]. DHS’s federally submitted Program Improvement Plan listed “[i]nadequate parent/child visitation,” “[l]ack of quality visitation which promotes parent/child/sibling bonds,” and “[i]nadequate child and family engagement” as “[k]ey [i]ssues.” [Dkt. #602-17, Ex. 41, CFSR-PIP-2008-Rev. 10.12.09-00022-23].
Additionally, under federal statute, Oklahoma law and DHS policy, siblings in foster care are to be placed together unless doing so would be contrary to their well-being. If siblings are placed separately, they must have frequent visitation or other interactions. 42 U.S.C. § 671(a)(31)(A)-(B); 10A O.S. § 1-7-107; O.A.C. §§ 340:75-6-30, 340:75-6-85.3. DHS field liaisons have emphasized that sibling contact improves outcomes for children, increases placement stability, increases the likelihood of reunification and is important to well-being. [Dkt. #606-15, Ex. 140, CWFL-MN-11.14.07-00016-17]. Plaintiffs’ and defendants’ experts agree that sibling separation can contribute to children’s pathologies. [Dkt. #605-5, Ex. 105, Casillas Dep., 66:12-67:8; Dkt. #605-22, Ex. 122, Eugene Reynolds, Ph.D., Report, p. 10].
According to an internal DHS report, as of December 2010, 2,726 children were not in the same placement as all of their siblings. [Dkt. #606-19, Ex. 144, YI684-Q#360-0298703152]. Plaintiff’s expert Dr. Milner found that 72% of eligible children in his sample did not have all required visits with their siblings in separate placements during the 12 months prior to June 1, 2010, and 22% of eligible children had no visits with siblings in any of the 12 months. [Dkt. #601-1, Ex. 1, CFS Report, p. 79].
J. Permanence DHS managers and commissioners acknowledge that it is DHS’s responsibility that children in custody exit quickly and safely to a permanent home, either through reunification with their birth family or through adoption. [Dkt. #601-24, Ex. 24, Hendrick Dep., 210:9-16;
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Dkt. #602-25, Ex. 49, G. Miller Dep., 194:16-195:3; Dkt. #601-23, Ex. 23, Peck Dep., 81:18-21; Dkt. #603-2, Ex. 52, D. Smith Dep., 125:20-126:4; Dkt. #601-25, Ex. 25, Weeks Dep., 123:1418; Dkt. #601-21, Ex. 21, Wilkinson Dep., 14:17-20, 30:1-9, 169:24-170:5; Dkt. #603-17, Ex. 67, William Wilson Dep., 41:19-22; Dkt. #603-4, Ex. 54, Youngblood Dep., 24:6-25:17, 215:25216:4].
Plaintiffs’ and defendants’ experts recognize the importance of achieving permanence quickly and safely because, inter alia, lengthy stays in custody negatively impact children’s development and well-being, and also make it less likely that the children will ever be placed in a permanent home. [Dkt. #720-1, Ex. 29, Arnold-Williams Dep., 200:14-18; Dkt. #601-1, Ex. 1, CFS Report, pp. 57-58; Dkt. #601-2, Ex. 2, Miller Report, pp. 58-63].
From FFY 2007 to 2010, the average length of time to permanent exit from foster care steadily increased from 20.4 months to 25.9 months. [Dkt. #607-5, Ex. 155]. Nationwide, the average length of stay for children exiting foster care was 21.7 months in FFY 2010. [Dkt. #6076, Ex. 156, AFCARS Report, p. 4]. According to DHS reports, of those children who achieved permanence in 2010, it took longer than three years for 34% of them (620 of 1,844 children) to do so. [Dkt. #603-1, Ex. 51, YI624-11270]. Nationally, in FFY 2010, only 17% of children exiting foster care had been in foster care for more than three years. [Dkt. #607-6, Ex. 156, AFCARS Report, p. 4].
In state fiscal year 2010, only 8.2% of children with a goal of adoption were in trial adoptive homes. [Dkt. #607-19, Ex. 169]. According to plaintiffs’ expert, Dr. Milner, in his sample of 128 children who were free for adoption, 41% did not become free for adoption for two years or more. Of the 244 children in his sample who were not free for adoption as of June 1, 2010, 31% had been in custody for longer than two years and 23% had been in custody for
21

longer than three years. Dr. Milner also found that many required adoption activities (e.g., identifying an adoptive family, placement in a pre-adoptive home, referral to an adoption worker) had not taken place for children with a goal of adoption. [Dkt. #601-1, Ex. 1, CSF Report, pp. 65-67].
K. DHS’s Practice Model The DHS has developed a Child Welfare Practice Model Guide (“Practice Model”). The Practice Model is “based on a study of best child welfare practices from across the nation, and was developed through a process of consultation with many professionals at the OKDHS, including policy specialists as well as line staff.” [Dkt. #561-19, Ex. 18, Declaration of Deborah G. Smith, MSW, ¶10]. The Practice Model focuses on the safety of children from receipt of a referral call alleging abuse or neglect of a child through permanency. [Id.]. Plaintiffs criticize the Practice Model, arguing that it focuses almost entirely on how to assess the risk and safety of children who are not in custody and does not address many of the children face while in DHS custody, including placement moves, shelter stays, placement resources, time in custody and independent living services. [Dkt. #600 at 37]. Further, they contend the Practice Model does not adequately address safety issues. [Id.]. Defendants’ consultant/expert Dr. Sue Steib identified numerous areas needing attention. [Dkt. #604-3, Ex. 98, Sue Steib Dep., 75:7-24, 77:1-82:1; Dkt. #607-11, Ex. 161, Field Notes, pp. 1-5]. Steib testified that she was not aware of efforts yet taken to remedy all but one of these problems and that many, if not all, of these issues put children at risk. [Dkt. #604-3, Ex. 98, 77:1-82:1).
L. Compliance With Statutory Requirements for Reporting Under 10A O.S. §1-4-704(2010) (the successor statute to 10 O.S. § 7003-5.3 (2007)), DHS is required to prepare and maintain a written individualized service plan for any child who
22

has been adjudicated to be a deprived child. DHS records show that for 2010, 94.2% of all such plans were delinquent as of January 5, 2011. [Dkt. #603-1, Ex. 51 at YI624-11267].
Under 10A §§ 1-4-810 and 811 (2010) (successor statutes to 10 O.S. § 7003-5.6(2007)), DHS is required, prior to permanency hearings for children who have been in out-of-home care for 12 months or longer, to prepare a report that includes a proposed permanency plan. Subsequent permanency hearings are to be held at least every six months for any child who continues to be in an out-of-home placement. According to DHS reports, however, in 2010, it had taken 37 months or more to complete permanency plans for 1,673 children. [Dkt. #607-15, Ex. 165, OKHS Outcome Indicator Report, Permanency—Length of Time of Achieve Plan].
In interrogatory responses, plaintiffs identified 131 children who they allege did not receive adequate procedural due process under 10A O.S. §1-4-704(2010) and 10A O.S. §§ 1-4810 and 811 (2010) “because by June 10, 2010, each child had three or more consecutive permanency goals during their time in DHS custody and a meaningful permanency report is not possible with constantly changing permanency goals.” [Dkt. #561-13, Ex. 12 at 10].
Under 10A O.S. § 1-40-902(2010) (the successor statute of 10 O.S. § 7006-1.6 (2007)), the district attorney is required to file a petition or motion for termination of the parent-child relationship and parental rights under certain enumerated circumstances, including before the end of the fifteenth month when a child has been placed in foster care by DHS for 15 of the most recent 22 months. The district attorney is not required to file such a petition where the department has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the best interests of the child, or where the state has not provided to the family of the child, consistent with the time period in the state case plan, services that the state deems necessary for the safe return of the child to the child’s home. Id.
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In interrogatory responses, plaintiffs identified 64 children they have been deprived of their entitlements under 10A O.S. § 1-40-902(2010) because each was not timely placed on a list for termination of parental rights (“TPR List) in a timely manner. [Dkt. #561-13, Ex. 12 at 3336]. Additionally, plaintiffs cite a DHS report showing that termination of parental rights petitions were not filed for 79% of children in custody for 15 of the prior 22 months [Dkt. #60723, Ex. 173] and a DHS report showing that as of December 2010, the average length of time before foster children’s parental rights were terminated was 18-20 months. [Dkt. #607-24, Ex. 174.
Under 10 O.S. § 1-7-103(1)(e)(2010) (the successor statute to 10 O.S. § 7004-1.1 (2007)), DHS is required to provide educational instruction to children through enrollment in a public school or an alternative program consistent with the needs and abilities of the child. Plaintiffs have identified 41 children they allege did not receive their constitutionally protected interests in adequate educational services. [Dkt. #561-13, Ex. 12 at 105-106]. In addition, plaintiffs point to the expert report of Dr. Milner, who concluded based a review of a sampling of children that 90.7% of the individualized service plan materials contained no educational stability plan and 56.2% of school-aged children had a school change at initial placement unrelated to graduating from one level to another. [Dkt. #601-1, Ex. 1, Foster Care Case Review of the ODHS by Center for the Support of Families (CSF), Inc., p. 74].
II. Standard of Review Summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). “The plain language of
24

Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 317.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material fact. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). In its review, the court construes the record in the light most favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.
III. Analysis A. Substantive Due Process Rights Violations (First Cause of Action) Children in the custody of the state have a Fourteenth Amendment substantive due process right to be reasonably safe from harm. Yvonne L. v. New Mexico Dep’t. of Human Services, 959 F.2d 883, 892-93 (10th Cir. 1992). Officials may be held liable for a violation of this right when it is shown that they have failed to exercise professional judgment. Id. at 893-94. The Tenth Circuit has stated: “Failure to exercise professional judgment” does not mean mere negligence… while it does not require actual knowledge the children will be harmed, it
25

implies abdication of the duty to act professionally in making the placements. Id. at 894. “Such abdication must be sufficient to shock the conscience.” Johnson v. Holmes, 455 F.3d 1133, 1143 (10th Cir. 2006).
In order to establish standing to pursue their claims, plaintiff must show (1) they have suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by the relief sought. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). Where— as here—plaintiffs seek prospective relief, plaintiffs “must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.” Id. At the summary judgment stage, the elements of standing must be set forth, through specific facts, by affidavit or other evidence. Id.
Plaintiffs have presented evidence that from 2002 through 2008, the reported rate of abuse or neglect of Oklahoma foster children has been 1.54 to 3.97 times greater than the federal standard. Oklahoma had one of the five highest reported rates in the country from 2002 through 2008. Further, Oklahoma’s reported numbers do not include instances of abuse or neglect in state foster care facilities, which would have substantially boosted the reported rate, or of abuse of children by their birth parents while the children were in the legal custody of the state. The court finds this evidence creates a genuine dispute of material fact about whether foster children in Oklahoma are being harmed or put at imminent risk of harm.
Plaintiffs have also presented evidence of serious issues with inadequacy of placement options, overuse of shelters, and lack of placement stability in the foster care system. The summary judgment evidence shows an overall shortage of foster homes, and shortages of
26

therapeutic and emergency foster homes; a shortage of group homes; and a shortage of adoptive homes. Plaintiff’s expert opined that the shortage has led to dangerous and inappropriate placements. Further, the evidence shows that while the number of children placed in the two DHS shelters declined from 2006 to 2010, the average daily population has trended upward from May 2010 to May 2011. Children under the age of six are being placed in shelters for more than 24 hours. At times, children are being kept in shelters longer than 30 days. Plaintiffs’ expert opines that the overuse by DHS of emergency placements such as shelters is harmful to children because it jeopardizes their ability to form emotional attachments that are crucial for their development. Finally, plaintiffs have presented evidence that Oklahoma ranks 45th out of 51 jurisdictions nationwide in the area of placement stability, that 26% of children who had been in out-of-home care for less than 12 months had three or more placements in FFY 2009 and that number increased to 28% in 2010. The number of foster children who had more than 20 placements was 150 in March 2010 and increased to 164 as of March 2011. Plaintiff’s expert opined that excessive placement changes cause chronic grief, development regression and other developmental and emotional problems.4
Defendants assert there is no causal link between defendants’ policies, practices or procedures and harm or risk of harm to children. However, plaintiffs’ and defendants’ experts, as well as defendants and senior DHS managers, all agree that excessive caseloads, missed visits between case workers and children, and inadequate investigations of abuse and neglect pose a threat to the safety of foster children, and that inadequate placement options, excessive use of shelters and frequent placement moves threaten the psychological and emotional health of
4 Plaintiffs, in presenting evidence that inadequate placement options, use of shelters and frequent placement moves result in psychological harm or risk of psychological harm to children, assume that the “harm” or “risk of harm” standard set out in Yvonne apply not only to physical harm, but psychological harm as well. Defendants do not challenge this assumption.
27

children. Further, plaintiffs have presented evidence—albeit disputed—that defendants’ oversight of the DHS foster care program is so inadequate as to give rise to a question of material fact whether defendants have abdicated their professional judgment.
The court concludes plaintiffs have presented proof sufficient to create a genuine dispute of material fact about whether defendants’ policies, practices and procedures violate plaintiffs’ substantive due process right to be reasonably safe from harm.
Therefore, defendants’ motion for summary judgment on plaintiffs’ first cause of action for violation of substantive due process rights is denied.
B. Right of Familial Association (Second Cause of Action) Plaintiffs contend defendants’ policies, practices and procedures interfere with their First, Ninth and Fourteenth Amendment liberty and privacy rights. Plaintiffs assert that while DHS policy requires visits between parents and children and placement of siblings together whenever possible, DHS’s own records from 2008 to 2010 reflect that less than 15% of visits due between foster children and their biological parents were completed, and DHS has a routine practice of separating siblings in custody. Courts recognize that certain personal relationships must be afforded a “substantial measure of sanctuary from unjustified interference by the State.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). However: Not every statement or act that results in an interference with the rights of intimate association is actionable. Rather, to rise to the level of a constitutional claim, the defendant must direct his or her statements or conduct at the intimate relationship with knowledge that the statements or conduct will adversely affect that relationship. Griffin v. Strong, 983 F.2d 1544, 1548 (10th Cir. 1993).
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The evidence presented at summary judgment does not establish the requisite conduct or state of mind described in Griffin. Conceivably, individual plaintiffs could show specific DHS workers failed to ensure that children met with their parents or other family members, and thus, the workers’ conduct was “directed at the intimate relationship with knowledge the conduct would adversely affect the relationship.”5 However, the same cannot be said about these defendants. They are responsible for setting policy and for oversight of DHS operations and activity, but they do not deal with foster children directly. At most, the evidence might support a conclusion that defendants failed to adequately supervise workers who were charged with the responsibility of ensuring parent-child visitation occurred. However, plaintiffs have failed to present evidence of conduct by any of these defendants directed at any plaintiff with knowledge that his or her conduct would adversely affect that plaintiff’s familial relations.
Plaintiffs’ claim is also subject to summary judgment because—while individual children can establish acts by DHS workers that have violated their right of familial association—a classwide deprivation cannot be proven. Under Griffin, an actual infringement of the right is required to establish a claim for violation of the right of familial association. Id. at 1549. In contrast, under Yvonne, a claim for violation of a foster child’s substantive right of due process arises when the child is either harmed or placed at “risk of harm.” Yvonne L., 959 F.2d at 892-93.6 Plaintiffs have cited no authority for the proposition that a violation of the right of familial
5 In Griffin, for example, the wife of a man who was the subject of a child abuse investigation sued a police officer who participated in the investigation for interfering with the couple’s familial relationship. 983 F.2d at 1545. 6 The Tenth Circuit, in the appeal of the district court’s grant of class certification of this case, noted, “In theory, 100% of foster children could live under an imminent threat of serious harm.” DG, 594 F.3d at 1198.
29

association occurs when a child is put “at risk” of a deprivation; rather, an actual deprivation must have occurred.
For these reasons, defendants are entitled to summary judgment on plaintiffs’ Second Cause of Action.
C. Procedural Due Process Violations (Fourth Cause of Action) Plaintiffs contend defendants’ policies and practices systematically deprive or threaten to deprive them of state entitlements without procedural safeguards. See Ky. Dept of Corr. v. Thompson, 490 U.S. 454, 462 (1989); Tri-State Contractors, Inc. v. Fagnant, 393 F. App’x 580, 584 (10th Cir. 2010). Plaintiffs recite violations of Oklahoma statutes pertaining to procedural rights of foster children, including the right to individualized treatment and service plans under 10A O.S. § 1-4704 (2010) (successor statute to 10 O.S. § 7003-5.3 (2007)); the entitlement to drafts of semiannual, meaningful reports pursuant to 10A O.S. §§ 1-40-810 and 811 (2010) (successor statutes to 10 O.S. § 7003-5.6 (2007)); the entitlement to being identified on a list to the district attorney when they have been in custody for 15 of the prior 22 months, pursuant to 10 O.S. §§ 1-4-902 (2010) (successor statute to 10 O.S. § 7006-1.6 (2007)); and the entitlement to suitable educational instruction pursuant to 10A O.S. §1-7-103 (2010) (successor statute to 10 O.S. § 7004-1.1 (2007)). The Supreme Court has stated: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
* * * Property interests, of course, are not created by the Constitution. Rather, they are
30

created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlements to those benefits.
Roth v. Board of Regents, 408 U.S. 564, 577 (1972). Because the statutes at issue confer upon
foster children specific rights or entitlements, the court finds the plaintiff children are entitled to
procedural due process protection of those entitlements.
To establish a procedural due process violation, a plaintiff must prove two elements: (1)
that he possessed a constitutionally protected liberty or property interest such that due process
protections were applicable; and (2) that he was not afforded an appropriate level of process.
Couture v. Bd. of Education of the Albuquerque Public Schools, 535 F.3d 1243, 1256 (10th Cir.
2008). Additionally, the Supreme Court has held that in order to hold officials liable for a
procedural due process violation under § 1983, a plaintiff must demonstrate the officials’
decisions “have cause the deprivation of rights at issue by policies which affirmatively command
that it occur, or by acquiescence in a long-standing practice or custom which constitutes the
‘standard operating procedure’ of the local government entity.” Jett v. Dallas Ind. School Dist., 491 U.S. 701, 737 (1989) (citations omitted).7
Plaintiffs have established the first element of a procedural due process claim, i.e., that
the statutes at issue create entitlements to which procedural due process protections attach.
7 Defendants contend that under Canton v. Harris, 489 U.S. 378 (1989), Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 411 (1997), and Connick v. Thompson, ---U.S.---, 131 S.Ct. 1350 (2011) the applicable standard of culpability is “deliberate indifference.” The court disagrees. Those cases all involved claims of procedural due process violations based on officials’ alleged failure to train employees. Because “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train,” the court held that a municipality’s failure to train its employees in a relevant respect “must amount to deliberate indifference to the rights of persons with whom the untrained employees come into contact.” Connick, 131 S.Ct. at 1359 (quotations and citations omitted). “Only then can such a shortcoming be properly thought of as a city policy or custom that is actionable under § 1983.” Id. at 1359-60.
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However, the second element of the claim—that plaintiffs were not afforded the appropriate level of procedural due process—has only been shown with respect to specific children identified in interrogatory responses. Perhaps those children have individual claims for violation of their procedural due process rights, but plaintiffs assert only class-wide claims.
It is impossible, however, for the class as a whole to establish the second element of a procedural due process claim because most children’s procedural due process rights have not been violated. Plaintiffs contend all members are “at risk” their procedural due process rights will be violated. However, they cite no authority for the proposition that being “at risk” meets the requirements for establishing a procedural due process violation. Moreover, they do not claim, nor do they provide evidence, that all members have been denied an appropriate level of process.
Therefore, defendants are entitled to summary judgment on plaintiffs’ claim for alleged violations of the plaintiff children’s right to procedural due process.
IV. Conclusion For the reasons set forth below, defendants’ Motion for Summary Judgment [Dkt. #561] is denied with respect to plaintiffs’ First Cause of Action. It is granted with respect to plaintiffs’ Second and Fourth Causes of Action. ENTERED this 1st day of December, 2011.
32

 
 Case 4:08-cv-00074-GKF-FHM Document 778 Filed in USDC ND/OK on 02/29/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G., by Next Friend G. Gail Stricklin, et al., for themselves and those similarly situated,
Plaintiffs, v.
BRAD YARBROUGH, Chairman of the Oklahoma Commission for Human Services, in his official capacity, et al.,
Defendants.

)

)

)

)

)

Class Action

) Civil Action No. 08-CV-074-GKF-FHM

)

)

)

)

)

)

)

FINAL ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT

On this 29th day of February, 2012, after review and consideration of the Joint Motion of

the Plaintiff Class and the Settling Defendant for Preliminary Order Approving Compromise and

Settlement Agreement [Dkt. 770], the Joint Am endment to Joint Motion of the Plain tiff Class

and the Settling Defendant for Prelim inary Order Approving Com promise and Settlem ent

Agreement [Dkt. 773], the Court’s Order Prelim inarily Approving Compromise and Settlement

[Dkt. 774], the Joint Statem ent In Support of Final Approval of Proposed Class Action

Settlement Agreement [Dkt. 776], the Certification of Notice pr esented to the Court at the

Settlement Fairness Hearing on th is date, and the statements of the Pl aintiff Class and the

Defendants presented to the Court on this date, the Court finds as follows:

1. By virtue of an Order dated May 8, 2009 (Dkt. # 272) this Cour t certified a class

of plaintiffs (the “Plaintiff Class”) more specifically described as follows:

All children who are or will be in the legal custody of the Oklahoma Department of Human Services (1) due to a repo rt or suspicion of abuse or neglec t; or (2) who are or will be adjudicated deprived due to abuse or neglect.

Case 4:08-cv-00074-GKF-FHM Document 778 Filed in USDC ND/OK on 02/29/12 Page 2 of 3

2. A settlement was reached between the Plai ntiff Class and the Settling D efendant

pursuant to settlement negotiations conducted under the supervision of United States Magistrate

Judge Lane W ilson (Compromise and Settl ement Agreement dated D ecember 15, 2011, the

“Settlement Agreement”).

3. The Settlement Agreement was duly approved by the Oklahom a Commission for

Human Services on December 20, 2011.

4. The Settlement Agreem ent was duly approved by the Oklahom a Contingency

Review Board with modification on December 28, 2011.

5. The Settlement Agreem ent, as approved by the Oklahom a Contingency Review

Board with modification on Decem ber 28, 2011, was duly appro ved by the Oklahom a

Commission for Human Services on January 4, 2012.

6. On January 23, 2012, the Court entered its Order Prelim

inarily Approving

Compromise and Settlem ent [Dkt. 774, the “Pre liminary Order”] in which the Court (i)

preliminarily found the Settlem ent Agreement to be reasonable, adequate, and fair, (ii) set the

date of and tim e on which a settlem ent fairness hearing would be held to determ ine whether a

final order approving the Settlement Agreement should be entered, (iii) determined the manner in

which notice should be given of the settlem ent fairness hearing, and (iv) prescribed the m anner

and time in which objections to the Settlement Agreement could be presented.

7. The Court hereby finds that notice of the settlement fairness hearing has been

given in the manner prescribed in this Court’s Preliminary Order [Dkt. 774].

8. The Settlement Agreement is hereby incorporated in this Order by this reference.

9. The Court finds that the Settling Defenda nt do not adm it, and specifically deny,

any and all liability to the Plaintiff Class, the Class Representatives and Class Counsel.

2

Case 4:08-cv-00074-GKF-FHM Document 778 Filed in USDC ND/OK on 02/29/12 Page 3 of 3
10. The Court observes that no objections to the Settlem ent Agreement have been made.
IT IS THEREFORE HEREBY ORDERED: 1. Pursuant to Fed. R. Civ. P. 23(e), the Se ttlement Agreement was entered into between the Settling Defendant and the Settlement Class in good faith and without collusion. 2. Pursuant to Fed. R. Civ. P. 23(e), the Sett lement Agreement is fair, adequate, and reasonable. 3. Pursuant to Fed. R. Civ. P. 23(e), the Settlement Agreement is hereby approved. 4. This action is he reby dismissed with pre judice, subject to the retention of jurisdiction as hereafter provided. 5. Each Settlement Class Mem ber is hereby deemed conclusively to have released the Released Claims against the Released Parties. 6. Each Settlement Class Member is hereby barred and permanen tly enjoined from prosecuting, commencing or continuing any of the Released Claims against the Released Parties. 7. The Court hereby re tains jurisdiction solely f or the purp oses set f orth in the Settlement Agreement. Entered this 29th day of February, 2012.
3

 
 D.G. ex rel. Stricklin v. Henry, 591 F.Supp.2d 1186 (2008)

591 F.Supp.2d 1186 United States District Court,
N.D. Oklahoma.
D.G. by Next Friend G. Gail STRICKLIN, et al., for themselves and those similarly situated, Plaintiffs,
v. C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
Case No. 08-CV-074-GKF-FHM. | Dec. 11, 2008.
Synopsis Background: Children in foster care, on behalf of themselves and those similarly situated, brought class action under § 1983 against Governor of Oklahoma and other state entities, alleging violations of fundamental duty to provide safe and adequate living situations, services for children, and adequate monitoring of their safety. Governor moved to dismiss.
[Holding:] The District Court, Gregory K. Frizzell, J., held that allegations against governor were insufficient to overcome Eleventh Amendment bar on actions against state.
Motion granted.
Attorneys and Law Firms
*1187 Andrew Belkin Bauer, Carly Henek, Mark A. Beckman, Phillip A. Geraci, Rose Nadine Fontaine, Kaye Scholer LLP, Ira P. Lustbader, Jeremiah Lee Frei-Pearson, Marcia Robinson Lowry, William Kapell, Yasmin Grewal-Kok, Children’s Rights, New York, NY, Bruce W. Day, Joe Earl Edwards, Day Edwards Propester & Christensen, Oklahoma City, OK, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Scott Alan Graham, Seymour & Graham LLP, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, Donald Mitchell Bingham, Donna Marie De Simone,

Holly M. Hillerman, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Robert Allen Nance, Stephen Louis Cortes, Thomas Martin Askew, Melvin Curtis Hall, Robert P. Skeith, Riggs Abney Neal Turpen Orbison & Lewis, Oklahoma City, OK, for Defendants.
Opinion
OPINION AND ORDER
GREGORY K. FRIZZELL, District Judge.
This matter comes before the court on defendant Governor C. Brad Henry’s Special Appearance and Motion to Dismiss [Doc. No. 58]. Defendant asserts the case should be dismissed against him pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction because plaintiffs do not have standing with respect to claims against him and therefore he is not a proper defendant. Alternatively, he seeks dismissal of the entire case on the grounds that the next friends who are pursuing these claims on behalf of the named plaintiffs lack capacity to do so. For the reasons set forth below, the court finds the suit should be dismissed with respect to him.
Background
This 42 U.S.C. § 1983 action for alleged constitutional and statutory violations was brought by nine Named Plaintiffs in foster care in Oklahoma, on behalf of themselves and the more than 10,000 similarly situated *1188 children who have been removed from their homes by the State of Oklahoma. Plaintiffs have alleged that the Oklahoma Department of Human Services (“DHS”), which has custody of the children, has a fundamental duty to provide for the children’s safety and care. Plaintiffs contend DHS has failed to provide safe and adequate living situations, services for the children and adequate monitoring of their safety.
Plaintiffs named as defendants the Governor of the State of Oklahoma; all nine members of the Oklahoma Commission for Human Services (“OCHS”), the body
1

D.G. ex rel. Stricklin v. Henry, 591 F.Supp.2d 1186 (2008)

responsible for formulating the policies and adopting the rules and regulations for the administration of DHS; and the director of DHS, each in his or her official capacity. They allege defendants’ actions violate their Fourteenth Amendment right to substantive due process; liberty and privacy interests and associational rights conferred by the First, Ninth and Fourteenth Amendments; the Federal Adoption Assistance and Child Welfare Act, 42 U.S.C. §§ 621 et seq.; federally and state-created liberty or property rights; and obligations under Oklahoma’s State Plan contracts with the government. Plaintiffs seek declaratory and prospective injunctive relief to “permanently enjoin defendants from subjecting Plaintiff Children to practices that violate their rights.” [Doc. No. 2, ¶ 255d].
Plaintiffs’ basis for naming the Governor as a defendant is set out in Paragraph 31 of the Complaint:
Defendant C. Brad Henry is the Governor of Oklahoma and is sued in his official capacity. Pursuant to Article VI, Section 8 of the Constitution of Oklahoma, the executive power of the State is vested in the Governor. Pursuant to that Section, the Governor is responsible for ensuring that all executive departments and agencies within the state, including DHS, faithfully executive and comply with applicable federal and state law. Pursuant to Article XXV, Section 3 of the Constitution of Oklahoma, the Governor has the power to appoint all nine members of the Oklahoma Commission for Human Services. Governor Henry maintains his principal place of business at the Governor’s Office, State Capitol Building, 2300 N. Lincoln Boulevard, Room 212, Oklahoma City, OK 73105.
[Id., ¶ 31].
Analysis
[1] The Eleventh Amendment to the Constitution provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.
The plain terms of the Eleventh Amendment have been “much embroidered.” Hill v. Kemp, 478 F.3d 1236, 1255 (10th Cir.2007). The Supreme Court has instructed that the amendment should be read to preclude suits by a citizen against its own sovereign state and suits brought by individuals against state officials acting in their official capacities. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Hill, supra; Harris v. Owens, 264 F.3d 1282, 1289 (10th Cir.2001).
The Supreme Court has, however, issued a series of rulings setting out exceptions to the scope of Hans. Here, the pertinent exception is Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The court in Ex parte Young held that the Eleventh Amendment generally will not operate to bar suits so long as they seek only declaratory and injunctive relief rather than monetary damages and are aimed *1189 against state officers acting in their official capacities rather than against the state itself.
[2] In Ex parte Young, the court held, “In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state and thereby attempting to make the state a party.” Id. at 157, 28 S.Ct. 441.
[3] Plaintiffs argue that under Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir.1988), they need not allege or show the Governor personally committed any of the alleged acts in order for him to be a proper defendant. Rather, they contend, it is sufficient that they show “some connection” between him and the conduct at issue. Plaintiffs assert that numerous connections satisfy this requirement. In general, the connections are:
• State Plan-The governor signs the written certification certifying DHS has authority to submit the State Plan under Title IV-E of the Social Security Act; he or his designee is required to review the State Plan under 45 C.F.R. § 1356.20(d)(2). [Doc. 2, ¶¶
2

D.G. ex rel. Stricklin v. Henry, 591 F.Supp.2d 1186 (2008)

253-254].
• Appointment of State Officials-the Governor has appointed Hendrick, the current Director of DHS, as Secretary of Human Services; all nine members of the Oklahoma Commission on Human Services, as well as the chairman of the commission; and all 21 members of the Postadjudication Advisory Board, which makes recommendations to state officials regarding children’s services and works with public and private agencies on foster care issues. [Doc. No. 2, ¶¶ 31-32; Doc. No. 82, pp. 6-8].
• Governor’s Task Force on Children in Custody-This task force presented a report to the Governor in June 2001 that highlighted numerous problems in state foster care. None of the deficiencies referenced in the report has been corrected. [Doc. No. 2, ¶¶ 60, 128, 139, 142].
• Responsibility to Enforce Laws-Article VI § 8 of the Oklahoma Constitution gives the Governor authority to “cause the laws of the State to be faithfully executed,” [Doc. No. 2, ¶ 31].
• Special Sessions-Article VI § 7 of the state Constitution gives the Governor authority to call special sessions of the legislature on topics he designates. [Doc. No. 82, p. 8].
• “Direct and Indirect Control”-The Governor and other defendants “directly and indirectly control and are responsible for” the administration of foster care in Oklahoma and the policies and practices of DHS. [Doc. No. 2, ¶¶ 1, 5].
The court is not convinced, however, that these allegations suffice to meet the requirements of Ex parte Young. Plaintiffs attack the administration of the state’s foster care system by DHS. It is true, as plaintiffs assert, that Article VI, § 8 of the Oklahoma Constitution vests executive power in the Governor. Additionally, under Article XXV, § 3, the Governor has the power to appoint members of the OCHS and to name its chairman. However, the Governor is in no sense responsible for actually administering the foster care system. Indeed, he is two steps removed from this responsibility. Under Article XXV, §§ 3-4 of the Oklahoma Constitution, the OCHS controls and sets policy and rules for DHS and appoints the director of DHS. The DHS director is responsible for carrying out the duties of the department subject to approval by the *1190 OCHS. Art. XXV, § 4.

Thus, DHS and its director have direct responsibility for administering the foster care system under the supervision of OCHS. To accept plaintiffs’ view that the Governor is a proper defendant here simply because he is the head of the executive branch of Oklahoma would abrogate the Eleventh Amendment bar to suits against states. Applying this approach, the Governor would be subject to inclusion in any and all civil rights action for injunctive relief against state agencies and departments. As the Supreme Court stated in Ex parte Young:
That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the states of the Union consistent with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.
209 U.S. at 157, 28 S.Ct. 441.
The court finds instructive a recent ruling by The Honorable Claire V. Eagan in another § 1983 case, Hill v. Kemp, 2008 WL 822070 (N.D.Okla.). In that case, the Oklahoma Religious Coalition for Reproductive Choice Education Fund (“ORC”) challenged the constitutionality of statutes involving distribution of certain monies raised from the sale of speciality license plates. Oklahoma law provides for the sale of speciality license plates bearing the phrase “Choose Life.” 47 O.S. § 1135.5(B)(23). Under 47 O.S. § 1104.6(B), a portion of the money collected from sale of those plates is directed to a revolving fund designated the “Choose Life Assistance Program” and administered by DHS. The money is distributed on a pro rata basis to nonprofit organizations that provide services to the community that include counseling and meeting the physical needs of pregnant women who are committed to placing their children for adoption. Id. Under § 1104.6(C)(4), in order to receive disbursements from the fund, an applicant organization must submit an affidavit verifying, among other things, that the organization “is not involved or associated with any abortion activities, including counseling for or referrals to abortion clinics, providing medical abortion-related procedures, or pro-abortion advertising.” ORC, an organization which provides family planning services including both adoption and abortion related
3

D.G. ex rel. Stricklin v. Henry, 591 F.Supp.2d 1186 (2008)

counseling, referrals and financial assistance, applied for funding three years in a row. Each time, its application was rejected. The ORC challenged the constitutionality of the eligibility criteria set for in § 1104.6(C)(4) and (D) and sought injunctive relief against these statutory conditions. The lawsuit named as defendants the Governor, the director of the Oklahoma Tax Commission (“OTC”), all members of the OTC, and the director of DHS. Chief Judge Eagan, in addressing defendants’ Rule 12(b)(1) motions to dismiss, approached the issue of whether they were proper defendants by applying a standing analysis. Id.
As articulated by Chief Judge Eagan in Hill at *4, Article III of the Constitution restricts federal courts to the adjudication of “cases or controversies.” U.S. Const. Art III, § 2, cl. 1. “The standing inquiry ensures that a plaintiff has a sufficient personal stake in a dispute to ensure the existence of a live case or controversy which renders judicial resolution appropriate.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir.2004). To establish Article III standing, a plaintiff must allege that 1) he or she has suffered and “injury in fact” that is (a) concrete and particularized and (b) actual of imminent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will *1191 be redressed by the relief requested. Id. at 1283. The party seeking to invoke federal jurisdiction bears the burden of establishing all three elements of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
In Hill, Chief Judge Eagan found ORC had failed to establish that a judgment against the governor and OTC

officials would redress its injury. Id. at *5, citing Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir.2005). This was because DHS, rather than the OTC or the governor, controlled disbursements from the fund at issue. Id. at *4-*5. The court held that the DHS director, however, should remain as a defendant in the action. Id. at *6.
Here, as in Hill, plaintiffs have failed to show the alleged injury will be redressed by the relief requested, at least as against this defendant. Plaintiffs contend that DHS policies and procedures violate their rights. The Governor does not control DHS. The director of DHS controls DHS and the OCHS has authority over the agency’s policies and procedures. Thus, while injunctive relief directed at members of the OCHS and the director of DHS might redress the alleged injury, an injunction against the Governor would be essentially meaningless.
Plaintiffs lack standing to assert their claims against this defendant. Therefore, dismissal pursuant to Rule 12(b)(1) is appropriate.
Conclusion
For the reasons set forth above, defendant Governor C. Brad Henry’s Motion to Dismiss [Doc. No. 58] is hereby GRANTED. This case is dismissed with respect to that defendant.

4

 
 D.G., by next friend Stricklin v. Henry, Not Reported in F.Supp.2d (2009) 2009 WL 455266

2009 WL 455266 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by NEXT FRIEND G. GAIL STRICKLIN; et al., Plaintiffs, v.
C. Brad HENRY, et al., Defendant.
No. 08–CV–74–GKF–FHM. |
Feb. 20, 2009.
Attorneys and Law Firms
Andrew Belkin Bauer, Kaye Scholer, LLP, New York, NY, Bruce W. Day, Joe Earl Edwards, Day, Edwards, Propester & Christensen, Oklahoma City, OK, Carly Henek, Phillip A. Geraci, Kaye Scholer, LLP, Ira P. Lustbader, Jeremiah Lee Frei-Pearson, Marcia Robinson Lowry, William Kapell, Yasmin Grewal, Children‘s Rights, Mark A. Beckman, Rose Nadine Fontaine, Kaye Scholer, LLP, New York, NY, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, Scott Alan Graham, Seymour & Graham, LLP, Tulsa, OK, Joe Earl Edwards, R. Thomas Seymour, Seymour & Graham, LLP, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, Assistant General Counsel, Donald Mitchell Bingham, Donna Marie De Simone, Kristopher Edward Koepsel, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Holly M. Hillerman, Thomas Martin Askew, Melvin Curtis Hall, Robert P. Skeith, Riggs, Abney, Neal, Turpen, Orbison & Lewis, John Patrick Mensching, Jr., Tulsa, OK, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Robert Allen Nance, Stephen Louis Cortes, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma City, OK, for Defendants.
OPINION AND ORDER

FRANK H. McCARTHY, United States Magistrate Judge.
*1 Defendant Howard Hendricks’ Motion to Compel [Dr. 172] and the Motion of Named Plaintiffs to Compel the Production of E–Mails [Dkt. 181] are before the Court for decision. The motions have been fully briefed and a hearing was held on February 19, 2009.
Hendricks’ Motion to Compel [Dkt. 172
Defendant Hendricks seeks an order requiring Plaintiffs to “produce or identify documents responsive to specific [document] requests as organized and labeled to correspond with the categories in the request.” The requests generally seek documents which support Plaintiffs’ various contentions in their Complaint. In an unusual twist, the documents which Defendant Hendricks seeks to have produced or identified are mainly documents which Defendant Hendricks has produced to Plaintiffs. At the hearing, Defendant Hendricks made clear that he is not really seeking production of the documents. What Defendant Hendricks actually wants is an order requiring Plaintiffs to identify which of Defendant’s documents Plaintiffs will use to support their contentions. Defendant Hendricks argues that, because this case involves a large number of documents, it is unfair to force Defendant Hendricks to guess which documents Plaintiffs will rely upon.
Fed.R.Civ.P. 34 concerns “Producing Documents, Electronically Stored Information, and Tangible Things.” The purpose of the rule is to allow a party to obtain documents, electronically stored information and tangible things. In this case Defendant Hendricks possesses all of the documents because Defendant Hendricks produced them to Plaintiffs. There is, therefore, no need for Defendant Hendricks to obtain any documents. Contrary to Defendant Hendricks’ assertion, there is no “asymmetry” of discovery in this case with regard to documents. Both sides have equal access to the documents at issue. At the hearing, Defendant Hendricks was unable to cite any particular authority for the use of a Fed.R.Civ.P. 34 Request for Production of documents as a means to require a party to identify documents in the manner suggested by the motion. Nor could Defendant

D.G., by next friend Stricklin v. Henry, Not Reported in F.Supp.2d (2009) 2009 WL 455266

Hendricks explain why he was employing this particular discovery procedure in this case. The Court is not persuaded that Fed.R.Civ.P. 34 is the appropriate procedure for Defendant Hendricks to obtain the relief he seeks. Therefore Defendant Hendricks’ Motion to Compel is DENIED. [Dkt. 172].
Notwithstanding the Court’s conclusion that Defendant Hendricks’ requests are not appropriate under Rule 34, the Court is persuaded that Defendant Hendricks has a legitimate need for Plaintiffs to identify which of the numerous documents in this case they will rely on to support their contentions. It would be unfair and wasteful to require Defendant Hendricks to scour the documents in an effort to anticipate which documents Plaintiff will use. At the same time, Plaintiffs must be afforded time to review the documents and determine which documents they will use. Additionally, Plaintiffs must have the flexibility to modify their decisions as the discovery in the case proceeds.
*2 At the hearing, Plaintiffs advised the Court that an expert is reviewing the documents and could probably produce an expert report identifying which documents Plaintiffs will rely on in 90 to 120 days. In order to properly manage the discovery in this case, the Court finds that it is appropriate for the Plaintiffs to be required to produce such a report.
IT IS THEREFORE THE ORDER OF THE COURT that by May 22, 2009, Plaintiffs shall provide Defendants with a preliminary expert report identifying which documents Plaintiffs contend support each of the contentions set forth in Plaintiffs’ Complaint as sought by Defendant Hendricks’ document requests at issue in this motion.
Motion of Named Plaintiffs to Compel the Production of E–Mails
As modified at the hearing, Plaintiffs’ motion seeks the production of e-mails of the named Plaintiffs’ former caseworkers who performed permanency planning services for the named Plaintiffs from January 1, 2006. Plaintiffs believe they can identify the names of the case workers and will advise the Defendants of the persons from whom they request e-mails.
Defendants do not challenge the relevance of these e-

mails under Fed.R.Civ.P. 26 but argue that the expense associated with producing the e-mails would be burdensome on Defendants and seek some level of costshifting or cost-sharing if ordered to produce the e-mails. Defendants contend the costs should be shifted to or shared by the Plaintiffs or their next friends, not Plaintiffs’ counsel as was suggested in Defendants’ response brief.
The Court finds that the e-mails at issue are relevant under Fed.R.Civ.P. 26 and that Plaintiffs have reasonably limited their request to avoid an undue burden on Defendants. The Court has carefully considered the factors suggested in Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y.2003) and the arguments in the parties’ briefs and concludes that cost-shifting or sharing is not appropriate in this case.
Plaintiffs’ Motion to Compel the Production of E–Mails, as modified at the hearing [Dkt. 181 ] therefore GRANTED. The Court recognizes that the particular details of this production were not set forth at the hearing and that ongoing communication and compromise between counsel will be required. If disputes arise as to the scope of this order, counsel shall utilize the procedures of LCvR 37.2.
Conclusion
Defendant Howard Hendricks’ Motion to Compel [Dkt. 172] is DENIED. By May 22, 2009, Plaintiffs shall provide Defendants with a preliminary expert report identifying which documents Plaintiffs contend support each of the contentions set forth in Plaintiffs’ Complaint as sought by Defendant Hendricks’ document requests at issue in Defendant Howard Hendricks’ Motion to Compel.
The Motion of Named Plaintiffs to Compel the Production of E–Mails [Dkt. 181] as modified at the hearing on February 19, 2009, is GRANTED.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 455266

D.G., by next friend Stricklin v. Henry, Not Reported in F.Supp.2d (2009) 2009 WL 455266
End of Document

 
 D.G. ex rel. Stricklin v. Henry, Not Reported in F.Supp.2d (2009) 2009 WL 1011595

2009 WL 1011595 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G. by Next Friend G. Gail STRICKLIN, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08-CV-074-GKF-FHM. |
April 15, 2009.
Attorneys and Law Firms
Andrew Belkin Bauer, Carly Henek, Phillip A. Geraci, Rose Nadine Fontaine, Kaye Scholer LLP, Gena E. Wiltsek, Ira P. Lustbader, Jeremiah Lee Frei-Pearson, Marcia Robinson Lowry, William Kapell, Yasmin Grewal-Kok, Children’s Rights, New York, NY, Bruce W. Day, Joe Earl Edwards, Day Edwards Propester & Christensen, Oklahoma City, OK, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Scott Alan Graham, Seymour & Graham LLP, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, Assistant General Counsel, Donald Mitchell Bingham, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Thomas Martin Askew, Robert P. Skeith, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Robert Allen Nance, Stephen Louis Cortes, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Oklahoma City, OK, for Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, District Judge.
1

*1 This matter comes before the court on defendants’ Motion for Summary Judgment Against Plaintiff D.G. [Doc. Nos. 207, 208]. Plaintiff children oppose the motion. For the reasons set forth below, the motion is granted.
This case was filed February 13, 2008, by nine named plaintiff children in Oklahoma Department of Human Services (“DHS”) custody alleging DHS’s foster care policies and practices violate their federal constitutional and statutory rights. [Doc. No. 2, Complaint]. Plaintiff children sought prospective injunctive relief compelling defendants to correct alleged deficiencies in the foster care system. Simultaneous with the filing of their complaint, plaintiff children filed a motion seeking certification of a class of all children currently in DHS custody. [Doc. No. 4] The class certification motion is set for hearing May 5, 2009.
Defendants seek summary judgment against plaintiff D.G. on the basis that the child is no longer in DHS custody and therefore his claims are moot.
Material Facts
1. At the time suit was brought, D.G. was a five-monthold boy who had been in foster care in DHS custody since shortly after his birth. [Doc. No. 2, ¶ 13, Doc. No. 227, ¶ 1.13]. The complaint alleged he had already been moved by DHS through at least four placements, including a 22day stay at an emergency shelter. [Doc. No. 2, ¶¶ 13, 158163].
2. On October 15, 2007, D.G. was placed with the foster parents who eventually adopted him. [Doc. 207-2, Ex. 4].
3. Also in October of 2007, D.G.’s foster parents commenced proceedings to adopt him. [Doc. 239-2, Ex. 2, DG-KIDS-4-00032].
4. On November 4, 2008, the adoption of D.G. was finalized. [Doc. No. 207-2, Ex. 2]. On the same date, D.G.’s juvenile case was dismissed; thus he is no longer in the physical or legal custody of DHS. [Doc. 207-2, Ex. 3].

D.G. ex rel. Stricklin v. Henry, Not Reported in F.Supp.2d (2009) 2009 WL 1011595

Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When applying this standard, a court must examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Wolf v. Prudential Insurance Co. of America, 50 F.3d 793, 796 (10th Cir.1995). The movant for summary judgment must meet the initial burden of showing the absence of a genuine issue of material fact, then the nonmovant bears the burden of pointing to specific facts in the record “showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Id.
Analysis
Defendants argue that since D.G. is no longer in the physical or legal custody of DHS, he cannot be harmed by the agency’s allegedly unconstitutional practices; therefore his claims are moot. Plaintiffs contend D.G. should remain a named plaintiff because two exceptions to the mootness doctrine apply: first, they allege plaintiff’s claims are inherently transitory and second, plaintiffs assert defendants purposefully expedited the adoption to force D.G. out of the suit.
*2 The existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction. Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir.2008). As a result, federal courts may adjudicate only actual controversies. Id. (citations omitted). Mootness occurs when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome. City of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 910, 919 (10th Cir.2004). With respect to injunctive relief and the question of mootness, “past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Chihuahuan Grasslands Allicance, 545 F.3d at 891, citing Beattie v. United States, 949 F.2d 1092, 1094 (10th Cir.1991). The party seeking prospective relief must “demonstrate a good chance of being likewise injured in the future.” Id.

As a general rule, a suit brought as a class action must be dismissed for mootness when the personal claims of the named plaintiffs are satisfied and no class has been properly certified, Reed v. Heckler, 756 F.2d 779, 785 (10th Cir.1985). However, there are certain exceptions to this rule. As previously stated, plaintiffs contend two of those exceptions apply in this case. First, they argue plaintiffs’ claims, including D.G.’s, are “so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” U.S. Parole Commission v. Geraghty, 445 U.S. 388, 399, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Second, they argue D.G.’s claims should be excepted from the mootness doctrine because his claims “have been rendered moot by purposeful action of the defendants.” Reed v. Heckler, 756 F.2d at 786. Specifically, plaintiffs allege DHS expedited D.G.’s adoption to “pick off” his claims before class certification could be decided.
Neither exception, however, applies in this case. In the 14 months since this lawsuit was filed, D.G. is the only named plaintiff reported to have left DHS custody. The remaining eight plaintiffs, who are all still in DHS custody, assert identical constitutional violations and request the same prospective injunctive relief sought by D.G. Moreover, plaintiffs’ class certification motion is set for hearing within three weeks. Therefore, plaintiffs’ claims are not so “inherently transitory” as to give rise to an exception to the mootness doctrine.
Similarly, plaintiffs have failed to present evidence plaintiff is no longer in DHS custody because of “purposeful action of the defendants.” The purpose of this exception is to preclude defendants from “picking off” named plaintiffs’ claims before the issue of certification can be reached. Owen v. Regence BlueCross BlueShield of Utah, 388 F.Supp.2d 1318, 1332 (D.Utah 2005). Although plaintiffs contend DHS gave D.G. “special treatment not available to other foster children in DHS custody because he was a named plaintiff in this case,” [Doc. No. 224, p. 1], they present no evidence in support of this claim. According to case contact notes, the adoption of D.G. was initiated by his foster parents in October 2007. [Doc. 239, Ex. 2, DGKIDS-4-00032]. The adoption took over a year to finalize. Evidence shows plaintiff’s adoptive parents and guardian ad litem, as opposed to DHS workers, attorneys or any legal strategy, were the driving force behind the effort to complete the adoption process. The case contact notes are replete with discussions of the adoptive parents’ and guardian ad litem’s repeated inquiries about what they perceived to be delays in the adoption and requests that the process be expedited.

2

D.G. ex rel. Stricklin v. Henry, Not Reported in F.Supp.2d (2009) 2009 WL 1011595
Plaintiff D.G. [Doc. Nos. 207, 208] is hereby granted.

Conclusion *3 Defendants’ Motion for Summary Judgment Against
End of Document

All Citations Not Reported in F.Supp.2d, 2009 WL 1011595

3

 
 D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2010) 2010 WL 1257583

2010 WL 1257583 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail Stricklin, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
March 24, 2010.
Attorneys and Law Firms
Andrew Belkin Bauer, Carly Henek, Phillip A. Geraci, Rose Nadine Fontaine, Kaye Scholer LLP, Gena E. Wiltsek, Ira P. Lustbader, Jeremiah Lee Frei-Pearson, Marcia Robinson Lowry, William Kapell, Yasmin Grewal-Kok, Patrick S. Almonrode, Children’s Rights, New York, NY, Bruce W. Day, Joe Earl Edwards, Day Edwards Propester & Christensen, Oklahoma City, OK, Frederic Dorwart, Paul DeMuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Scott Alan Graham, Seymour & Graham LLP, Tulsa, OK, for plaintiff.
Catherine Ann O’Leary, Department of Human Services, David Phillip Page, Donald Mitchell Bingham, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, TULSA, OK, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Robert Allen Nance, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Oklahoma City, OK, for Defendant.
OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
1

*1 OKDHS Defendants’ Motion for Protective Order [Dkt. 280] is before the undersigned United States Magistrate Judge for decision.
Background
The Oklahoma House of Representatives commissioned a performance audit of the Department of Human Services (DHS) by the independent auditing firm of Hornby Zeller Associates (HZA). Before the public release of the HZA audit, a draft of the review recommendations was provided to DHS. Attorneys for DHS prepared a memorandum/report to correct certain factual inaccuracies in the HZA audit and to place the work and comments of HZA in their proper context. The memorandum/report was provided to the general counsel for the Oklahoma House of Representatives and legal counsel to the President Pro Tempore of the Oklahoma State Senate. In the cover letters, DHS asserted the memorandum/report was covered by attorney work product protection and asked “that you endeavor to maintain the work product protection covering this report.”
Through an anonymous source, a copy of the memorandum/report was provided to counsel for Plaintiffs who, without first reading the memorandum/report, advised DHS counsel of that fact. DHS seeks an order directing Plaintiffs’ counsel to return the memorandum/report unread to protect the work product of counsel for DHS.
Analysis
Work product protection, recognized by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. 509–11, 67 S.Ct. 385, 91 L.Ed.2d 451 (1947), “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). Work product protection shields from production the information assembled and the thoughts and opinions developed by an attorney in preparation for litigation or

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2010)
2010 WL 1257583
anticipated litigation. Fed.R.Civ.P. 26(b)(3), United States v. Ary, 518 F.3d 775, 783 (10th Cir.2008).
The Supreme Court has cautioned that “[t]estimonial exclusionary rules and privileges contravene the fundamental principle that the public—has a right to every man’s evidence.” Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (quotations omitted). The Court further has cautioned that such rules and privileges “must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ “ Id. (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)). “[A]lthough Rule 501 manifests a congressional desire not to freeze the law of privilege but rather to provide the courts with flexibility to develop rules of privilege on a caseby-case basis, we are disinclined to exercise this authority expansively.” Univ. of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (citation and quotation omitted).
*2 In re Qwest Communications International Inc., 450 F.3d 1179, 1185 (10th Cir.2006). The party asserting work product protection has the burden to establish its applicability. In re Grand Jury Proceedings, 156 F.3d 1038, 1042 (10th Cir.1998).
The memorandum/report at issue is the work of DHS attorneys and as a result likely contains the impressions, analysis, and opinions of DHS legal counsel. However, the memorandum/report does not qualify for attorney work product protection under Hickman or Fed.R.Civ.P. 26(b)(3). Although the memorandum/report relates to the same general subject matter which is at issue in this case, and although counsel may have had this litigation in mind while drafting it, Defendant has not established that it was prepared in anticipation of litigation.
The Oklahoma House of Representatives, which commissioned the HZA audit for legislative purposes, gave a draft of the HZA audit to Defendant prior to releasing the final HZA audit, and requested a copy of Defendant’s review of HZA’s work. Defendant states its review of the draft was conducted to correct certain factual inaccuracies in the HZA audit and to place the work and comments of HZA in their proper context. Defendant then provided its review to the Oklahoma House and Senate. These facts lead the court to conclude that Defendant’s review was conducted and the results were given to the legislature to aide the legislative process. Since Defendant has not established that its
2

review of the draft HZA audit was prepared in anticipation of litigation or for trial, the court finds that the memorandum/report at issue does not constitute work product.
Further, even if the memorandum/report enjoyed work product protection in the hands of DHS and its counsel, whatever protection it might have had was waived when Defendant gave the memorandum/report to the Oklahoma legislature. While the Defendant clearly desired that the Oklahoma legislature “endeavor” to maintain the alleged work product protection of the memorandum/report, that unilateral desire does not avoid a waiver of the protection. The Tenth Circuit’s decision in Qwest, 450 F.3d at 1192– 94, supports this result.
In Quest, the Court rejected a selective waiver principle, or government investigation privilege, that would preserve work product protection for materials disclosed to federal investigative agencies under agreements which purport to maintain the attorney-client privilege or workproduct protection. The Court found that allowing a selective waiver for information provided to investigative agencies would not promote the purposes of the work product doctrine which is to permit counsel to prepare a case in privacy. Id. at 1195.
In view of the decision in Qwest, there is no basis to apply a selective waiver principle to materials provided to a legislative body. Whereas a governmental agency investigation is often the precursor to litigation of criminal charges or civil penalties and materials developed by counsel in response to an investigation may reasonably be considered to be preparatory to litigation, the same cannot be said of materials supplied to a legislative body. The likely purpose for supplying information to a legislative body is to aide legislative policy decisions. Since decisions made by a legislative body are made on behalf of the citizenry and affect the population at large, the decision-making process and the influences thereon are expected to be public. Accordingly, applying a selective waiver principle to the legislative arena would be contrary to the purposes of the work product doctrine and to the holding in Qwest.
*3 The court rejects Defendant’s argument that providing the memorandum/report to counsel for the Oklahoma House and Senate did not waive its work product protection because it did not significantly increase the likelihood that it would be obtained by Plaintiffs. Defendants have provided no factual support for this argument by way of affidavit or other evidence. Although Defendants made a request that counsel for the Oklahoma House and Senate “endeavor to maintain the work product

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2010) 2010 WL 1257583
protection,” there was no agreement to do so.
In light of the legislative and public interest in the HZA audit, it is reasonable to expect that Defendant’s memorandum/report would be widely circulated within the Oklahoma legislature and HZA which would in turn significantly increase the likelihood that it would be obtained by Plaintiffs.
The Court also rejects Defendant’s argument that it had a “common interest” with the Oklahoma legislature. None of the cases cited by Defendant address the situation presented in this case where a common legal interest is claimed between the legislative body and an executive agency.

Conclusion OKDHS Defendants’ Motion for Protective Order [Dkt. 280] is DENIED. SO ORDERED.
All Citations Not Reported in F.Supp.2d, 2010 WL 1257583

End of Document

3

 
 D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2010) 2010 WL 1257621

2010 WL 1257621 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail Stricklin, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
March 24, 2010.
Attorneys and Law Firms
Andrew Belkin Bauer, Carly Henek, Phillip A. Geraci, Rose Nadine Fontaine, Kaye Scholer LLP, Gena E. Wiltsek, Ira P. Lustbader, Jeremiah Lee Frei–Pearson, Marcia Robinson Lowry, William Kapell, Yasmin Grewal–Kok, Patrick S. Almonrode, Children’s Rights, New York, NY, Bruce W. Day, Joe Earl Edwards, Day Edwards Propester & Christensen, Oklahoma City, OK, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Scott Alan Graham, Seymour & Graham LLP, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, David Phillip Page, Donald Mitchell Bingham, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Robert Allen Nance, Stephen Louis Cortes, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Oklahoma City, OK, for Defendants.
OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
1

*1 OKDHS Defendant’s Motion for Sanctions for Noncompliance with the Court’s February 20, 2009 Order [Dkt. 302] is before the undersigned United States Magistrate Judge for decision.
The motion seeks sanctions, including dismissal of Plaintiff’s case, for Plaintiffs’ alleged noncompliance with the Court’s February 20, 2009 discovery order [Dkt. 249]. The February 20, 2009 order resulted from Defendant’s unusual effort to utilize a document request to Plaintiffs to force Plaintiffs to identify which of Defendant’s own documents Plaintiffs would use to support Plaintiffs’ contentions. The Court denied Defendant’s motion to compel on the basis that a document request was not the appropriate procedure for Defendant to obtain the relief being sought. However, the Court recognized Defendant’s legitimate need for Plaintiffs to identify which of Defendant’s numerous documents Plaintiffs would rely on. Plaintiffs were therefore ordered to provide a preliminary expert report identifying the documents they would rely on to support their contentions. It is the alleged insufficiency of the preliminary expert report that is the basis for Defendant’s motion.
Plaintiffs respond that they fully complied with the February 20, 2009 order. Plaintiffs point out that the documents identified pursuant to the February 20, 2009 order were only a fraction of the documents produced by Defendants. Plaintiffs also assert that even more identification will be provided.
Although the Court may have required additional identification of documents if Defendants had sought further relief, and while the Court may do so in the future, it does not follow that Plaintiff’s response was a violation of the February 20, 2009 order. The Court finds that Plaintiffs’ preliminary expert report was a reasonable response to the Court’s order. Therefore, the Court is not persuaded that Plaintiffs violated the February 20, 2009 order. Moreover, even if Plaintiff’s preliminary expert report did not comply with the February 20, 2009 order, Plaintiff’s actions would not justify the extreme sanction of dismissal sought by Defendants.
OKDHS Defendant’s Motion for Sanctions for Noncompliance with the Court’s February 20, 2009 Order [Dkt. 302] is DENIED.
SO ORDERED.
All Citations

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2010) 2010 WL 1257621 Not Reported in F.Supp.2d, 2010 WL 1257621 End of Document
2

 
 D.G. v. Henry, Not Reported in F.Supp.2d (2010)

2010 WL 2079710 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail Stricklin, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. | May 21, 2010.

Caseworkers’ Workload Reports Provided to Their Supervisors
Plaintiffs seek to compel the production of monthly workload reports caseworkers provided to their supervisors. Plaintiffs claim that “some, if not all” caseworkers provide such reports to their supervisors. [Dkt. 339, p. 15]. Plaintiffs further claim that such reports are important to Plaintiffs’ case because DHS does not systematically track its caseworkers’ secondary assignments, and the reports produced by DHS completely omit the workers’ “secondary” assignments which thereby materially understates true workloads.

Opinion
OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
*1 This Opinion and Order addresses Plaintiff Children’s Motions to Compel [Dkts. 339 and 348]. The motions have been fully briefed and a hearing was held on May 18, 2010.
At the hearing, counsel for the Defendants stated that Defendants had no objection to producing documents responsive to the following categories in Plaintiff’s motions. Plaintiffs’ motions are therefore granted as to: Child & Family Service Reviews, including correspondence; the Oklahoma Department of Human Services (DHS) budget and spending records; Evaluations and Assessments of child welfare system by outside agencies other than the ABA; Data regarding maltreatment of children by their biological parents while in DHS custody; and Workload Reports 600A, D and E.
The specific documents to be produced shall be in accord with the documents discussed at the hearing and in Plaintiffs’ papers. If the parties do not agree on the specific documents to be produced after a sincere, good faith effort to resolve the issues, counsel shall jointly contact the undersigned by telephone to resolve the issues pursuant to LCvR 37.2(b).

Defendants respond that DHS does systematically track caseworkers’ workloads and that the “secondary” assignments Plaintiffs refer to are captured in the report of “Count of Children by Responsible Worker.” Defendants support their position with deposition testimony from DHS employees. Defendants further contend that any personal monthly reports by caseworkers to their supervisors are not official DHS reports but are simply individual records of that caseworker.
The only evidence Plaintiffs presented that “some, if not all” caseworkers provide such reports is a single caseworker’s report and an e-mail about caseloads. Clearly, Plaintiffs have not established that “all” caseworkers make such reports or even that such reports are common. Nor have Plaintiffs established that DHS does not capture the caseworkers’ secondary assignments in its “Count of Children by Responsible Worker” report. Thus, it is not clear whether responsive documents exist, whether production of them would be unduly burdensome if they do exist, or whether they would be admissible. However, the one caseworker report and one e-mail concerning caseloads relied on by Plaintiffs are records produced by DHS which suggests that there may be additional records concerning caseworker workloads. Further, a comparison of the workloads on the one report and one e-mail with the DHS official reports shows that they do not match. The DHS official reports show lower caseloads.
*2 Because caseworkers’ caseloads are a central issue in the case, it is reasonable for the Court to require DHS to inquire whether supervisors have such reports and, if so, whether they could be produced without undue burden. The Court, therefore, orders Defendants to make a

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

1

D.G. v. Henry, Not Reported in F.Supp.2d (2010)

reasonable inquiry of whether supervisors have such reports and, if so, whether they can be produced without undue burden. Defendants shall file a supplemental response to Plaintiffs’ motion for production of the reports by June 18, 2010. The supplemental response shall advise the Court whether such reports exist and, if so, whether they can be produced without undue burden. Plaintiffs may file a supplemental reply by June 25, 2010.
Documents Concerning the ABA CCL Review
Plaintiffs seek production of four documents related to a review by ABA CCL. In response, Defendants submitted the affidavit of an Assistant General Counsel of DHS who stated that the ABA was engaged by DHS to provide legal consultation and advice in the form of assessing and analyzing the timely handling of Deprived Child cases in the District Court of Oklahoma County. The documents at issue are drafts of the ABA report which also contain handwritten comments of DHS counsel.
In reply, Plaintiffs argue that the report itself undermines the assertion that the ABA was retained to provide confidential legal advice to DHS. Plaintiffs can make this argument because Plaintiffs have a copy of a draft of the report which was published by a newspaper. Plaintiffs are not claiming a waiver of the privilege based on the
End of Document

publication because there is no information on how the newspaper obtained the report.
The Court is not persuaded by Plaintiffs’ arguments. DHS has affirmatively represented to the Court that the ABA was retained to provide legal advice. The report was intended for use by DHS. Therefore, even if the report contains recommendations directed to others and bears an ABA copyright legend, those facts do not establish that DHS was not seeking legal advice from the ABA or that the report was not the ABA’s communication of that advice to DHS..
Plaintiffs’ motion is denied as to the ABA CCL review.
Conclusion
Plaintiff Children’s Motions to Compel [Dkts. 339 and 348] are GRANTED in part and DENIED in part as provided herein. Defendants’ supplemental response is due by June 18, 2010, and Plaintiffs’ supplemental reply is due by June 25, 2010.
SO ORDERED.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

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 D.G. ex rel Stricklin v. Henry, Not Reported in F.Supp.2d (2010) 2010 WL 5387839

2010 WL 5387839 Only the Westlaw citation is currently available.
This decision was reviewed by West editorial staff and not assigned editorial enhancements.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail STRICKLIN, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
Dec. 21, 2010.
Attorneys and Law Firms
Angela Rosalee Vicari, John S. Cahalan, Phillip A. Geraci, Kaye Scholer LLP, Gena E. Wiltsek, Ira P. Lustbader, Jeremiah Lee Frei–Pearson, Marcia Robinson Lowry, William Kapell, Yasmin Grewal–Kok, Children’s Rights, New York, NY, Bruce W. Day, Joe Earl Edwards, Day Edwards Propester & Christensen, Oklahoma City, OK, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Seymour Law Firm, Scott Alan Graham, Graham Allen & Brown PC, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, David Phillip Page, Donald Mitchell Bingham, Donna Marie De Simone, Holly M Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Richard T. Garren, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Dorothy Sharon Gentry, Robert Allen Nance, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Oklahoma City, OK, for Defendants.
1

OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
*1 Plaintiff Children’s Motion for Sanctions, [Dkt. 426], is before the Court for decision. The motion has been fully briefed and a hearing was held on December 17, 2010.
Plaintiffs served their seventh request for production of documents1 on March 5, 2010. Since that time Plaintiffs have been attempting to obtain production of the documents and a clear statement that production is complete. As part of their efforts, Plaintiffs raised the issue at a status conference with the Court on August 10, 2010. After discussion, and with Defendants’ agreement, the Court entered the following Order:
All right, what I will do then is I will enter an order directing the defendants to respond, and actually produce the documents that are at issue in the plaintiffs’ [August 6, 2010] status report by September 10th along with a statement that [Defendants’] production is or is not complete, let [Plaintiffs] know where [Defendants] stand. Is that all of the documents there’s ever going to be or not, to the best that [Defendants] can. Do that by September 10th, or in the alternative file something with me explaining, a status report explaining why that can’t be accomplished. [Transcript of August 10, 2010 hearing, Dkt. 407, pp. 8–9]. On September 10, 2010, Defendants filed a status report that responsive documents to 64 of the 69 requests had been produced and the remaining documents would be produced soon. [Dkt. 413, p. 9].
Plaintiffs sent communications to Defendants about deficiencies in the production on September 13, September 27, September 30, October 6, and October 12, 2010. Defendants did not respond in any way to those communications. The current motion, filed October 20, 2010, requests that the Court order Defendants:
a. to pay all of Plaintiffs’ costs related to any communications with Defendants requesting documents responsive to the Seventh RFP after September 10, 2010 and all of Plaintiffs’ costs

D.G. ex rel Stricklin v. Henry, Not Reported in F.Supp.2d (2010) 2010 WL 5387839

related to prosecuting this Motion for Sanctions; and
b. to produce all documents responsive to the Seventh RFP by December 1, 2010 and to provide Plaintiffs with a statement, on a category-bycategory basis, that production is complete.
[Dkt. 426, p. 14]. Defendants’ response brief, [Dkt. 433], focused on Plaintiffs’ failure to meet and confer with Defendants and file a motion to compel prior to filing the motion for sanctions; explained that some of Plaintiffs’ asserted deficiencies were inaccurate; and promised any additional documents by December 1, 2010. Defendants rely in part on the Court’s Order of October 13, 2010, [Dkt. 423], directing that discovery disputes be presented by formal motion.
The Court’s Order requiring Defendants to produce the documents or explain why that could not be accomplished eliminated the need for Plaintiffs to file a motion to compel or meet and confer with Defendants prior to filing the instant motion. Defendants’ argument that they have somehow been deprived of an opportunity to resolve these issues without Court involvement is not supported by the record as they failed to respond to repeated communications from Plaintiffs concerning this discovery. Further, the Court’s subsequent Order of October 13, 2010, [Dkt. 423], did not release Defendants of their obligations under the August 10, 2010 Order.

*2 The relief requested by Plaintiffs in the motion is narrowly tailored and directly responsive to Defendants’ failure to timely produce the requested documents and Defendants’ failure to communicate with Plaintiffs concerning this discovery. Regardless of whether Plaintiffs’ motion is more properly styled as a motion to compel under Fed.R.Civ.P. 37(a), or as a motion for sanctions under 37(b), an award of expenses, including attorney fees is appropriate. Fed.R.Civ.P. 37(a)(5), 37(b)(2)(C).
Plaintiff Children’s Motion for Sanctions, [Dkt. 426], is GRANTED. All responsive documents and a statement on a category-by-category basis that the production is complete shall be produced by January 14, 2011. The parties shall confer and attempt to agree on the amount of costs and attorney fees due under this order. If the parties are unable to agree, Plaintiffs may file a properly supported application with the Court.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2010 WL 5387839

Footnotes

1

This Order addresses only the issues related to the seventh request for production. It should not be construed as a general

criticism of Defendants’ efforts to respond to Plaintiffs’ extensive discovery requests.

End of Document

2

 
 D.G., ex rel. Stricklin v. Henry, Not Reported in F.Supp.2d (2011)

2011 WL 1104091 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G. Gail STRICKLIN, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
March 23, 2011.
Attorneys and Law Firms
Angela Rosalee Vicari, John S. Cahalan, Phillip A. Geraci, Kaye Scholer LLP, Gena E. Wiltsek, Ira P. Lustbader, Jeremiah Lee Frei–Pearson, Marcia Robinson Lowry, William Kapell, Yasmin Grewal–Kok, Children’s Rights, New York, NY, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Seymour Law Firm, Scott Alan Graham, Graham Allen & Brown PC, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, David Phillip Page, Donald Mitchell Bingham, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Richard T. Garren, Stephanie L. Theban, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Dorothy Sharon Gentry, Robert Allen Nance, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Oklahoma City, OK, for Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, District Judge.
*1 This matter comes before the court on defendants’ Objections to Magistrate Judge’s February 11, 2011 Opinion and Order. [Doc. No. 487]. In his Opinion and Order, Magistrate Judge Frank H. McCarthy granted defendants’ Motion to Quash Notices of Deposition and for Protective Order [Doc. No. 457]. Plaintiffs argue the
1

Magistrate Judge’s order was contrary to law.
I. Background
Plaintiffs allege in this lawsuit that policies and procedures of the Oklahoma Department of Human Services (“DHS”) regarding the state’s foster care program violate their constitutional rights. [Doc. No. 1, Complaint, ¶ 6; Doc. No. 277, Transcript of May 5, 2009 Hearing, pp. 80–81]. On May 5, 2009, the court, pursuant to Fed.R.Civ.P. 23, certified the following class: “All children who are or will be in the legal custody of the Oklahoma Department of Human Services (1) due to a report or suspicion of abuse or neglect, or (2) who are or will be adjudicated deprived due to abuse or neglect.” [Id., p. 95]. The language was taken, verbatim, from plaintiffs’ Motion for Class Certification. [Doc. No. 4 at 8].
On November 4, 2010, a 10–day–old infant, Maggie Trammel, was found unresponsive in a washing machine at the home of her mother. She was later pronounced dead. Criminal charges were brought against her mother. Neither the infant nor any of her siblings was ever in the custody of the Oklahoma DHS before her death, although DHS had received a number of prior referrals concerning the family.
Plaintiffs subsequently served notices of depositions for Sheree Powell, the Coordinator of Communications for DHS, and four other DHS employees involved in two separate child protective services referrals concerning the baby’s family. DHS, in its motion to quash the depositions, argued the discovery sought was not relevant to any claims or defenses in the case. Plaintiffs asserted the discovery was relevant because defendants have publicly taken the position that children in DHS custody are safer due to a reduction in the number of children in DHS custody. Therefore, plaintiffs claimed they were entitled to discover the circumstances surrounding that reduction.
The Magistrate Judge ruled that whether defendants have publicly stated that children in DHS custody are safer because of the reduction in the number of children in state custody does not expand the claims or defenses in the case, and therefore the discovery sought by plaintiffs was not relevant. He granted the defendants’ motion to quash.

D.G., ex rel. Stricklin v. Henry, Not Reported in F.Supp.2d (2011)

II. Standard of Review
A magistrate judge’s order in a nondispositive pretrial matter may be reconsidered where it has been shown that the order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). See also Fed.R.Civ.Proc. 72(a) (on nondispositive matters “[t]he district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.”). Under the clearly erroneous standard, “the reviewing court [must] affirm unless it ‘on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988) quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
*2 Defendants argue that since the Magistrate Judge’s granting of their motion to quash was an order on a non-dispositive matter, the proper standard of review is the clearly erroneous or contrary to law standard of Rule 72(a). Plaintiffs assert the Magistrate Judge’s ruling that the discovery sought was not relevant to the claims or defenses in this case is a question of law subject to de novo review by this court and reversal if it is found to be contrary to law. See Sinclair v. U.S., 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692 (1929), abrogated on other grounds; Sprint Communications Co. L.P. v. Vonage Holdings Corp., 500 F.Supp.2d 1290, 1346 (D.Kan.2007).
The court does not find it necessary to determine which of the competing standards of review applies, because its ruling would be the same regardless of which standard is followed.
III. Analysis
Under Fed.R.Civ.P. 26(b)(1), the scope of discovery in this case is limited to “any nonprivileged matter that is relevant to any party’s claim or defense.” The Federal Rules of Civil Procedure “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed .R.Civ.P. 1.
Plaintiffs argue the discovery is relevant because “Defendants have repeatedly proclaimed that members of the Plaintiff class are safer and that caseloads have
2

improved as a result of the reduction in size of the Plaintiff class since the time this suit was brought in February 2008,” and that plaintiffs “are entitled to discovery regarding the circumstances surrounding that reduction.” [Doc. No. 467, Plaintiffs’ Response to OKDHS Defendants’ Motion to Quash at 1–2]. Specifically, plaintiffs contend that DHS, in an effort to reduce the number of children in custody (and therefore in the class) has “substantially curtailed its practice of conducting investigations in response to such reports in favor of a new approach of performing ‘assessments’ that rarely result in children being taken into custody.” [Id. at 2]. They allege “DHS’s policy for utilizing assessments over investigations was on full display in the Trammel case and, in particular, in the manner in which DHS responded to reports of potential abuse or neglect involving the family of Maggie May Trammel in the months prior to her death.” [Id.]. Plaintiffs contend the requested discovery “will illuminate the dangers that children face as a result of DHS’s heavy reliance on assessments over investigations, and in doing so, will set the proper context for Defendants’ claims that the care and safety of Oklahoma’s foster children has improved as a result of the reduction in the size of the Plaintiff class.” [Id. at 3]. They also assert the requested discovery “is likely to shed light on whether DHS is using its new assessment practice to manipulate the size of the class by improperly keeping children out of state custody who need the State’s protection.” [Id. at 3–4].
The scope of this lawsuit is limited to whether defendants have violated constitutional rights of children in DHS custody. It does not include children who were not in DHS custody, nor is the issue of whether defendants are attempting to manipulate the size of the class a “claim or defense” in this case. Thus, the tragic death of Maggie May Trammel is outside the scope of discovery as set forth in Fed.R.Civ.P. 26(b)(1).
*3 Plaintiffs cite Kenny A. v. Perdue, Case No. 1:02–CV–1686–MHS (N.D.Ga. May 20, 2010), for the proposition that they are entitled to discovery on the issue of whether defendants are keeping children out of foster care inappropriately. Plaintiffs’ reliance on that case is misplaced. In Kenny A., the state defendants had entered into a consent decree settling a class action brought on behalf of foster children in Fulton and DeKalb Counties, Georgia. Subsequently, plaintiffs filed a motion for discovery relating to their allegation that the state defendants were using “diversion” (a decision not to investigate a report of abuse or neglect that is not considered serious enough for intervention), safety resources and temporary guardianships to inappropriately limit the number of children entering foster care. Id. at 2–3. Defendants did not dispute—and the court

D.G., ex rel. Stricklin v. Henry, Not Reported in F.Supp.2d (2011)

found—that inappropriate use of these practices to suppress class membership would violate the Consent Decree. Id. at 5. Therefore, the court held that plaintiffs were entitled to conduct the requested discovery in order to determine whether to initiate enforcement proceedings. Id.
In this case, as the Magistrate Judge noted, “there is no consent decree and Plaintiffs have not attempted to bring any claim on behalf of children who are not in the Defendant’s custody.” [Doc. No. 486 at 2].
The court, having reviewed the record, concurs with the Magistrate Judge’s Opinion and Order.

IV. Conclusion For the reasons set forth above, plaintiffs’ Objections to Magistrate Judge’s February 11, 2011 Opinion and Order [Doc. No. 487] are denied.
All Citations Not Reported in F.Supp.2d, 2011 WL 1104091

3

 
 D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011)

2011 WL 1344200 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail Stricklin, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
April 8, 2011.
Attorneys and Law Firms
Angela Rosalee Vicari, John S. Cahalan, Phillip A. Geraci, Kaye Scholer LLP, Ira P. Lustbader, Marcia Robinson Lowry, William Kapell, Yasmin Grewal–Kok, Miriam F. Ingber, Patrick S. Almonrode, New York, NY, Frederic Dorwart, Paul DeMuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Seymour Law Firm, Scott Alan Graham, Graham Allen & Brown PC, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, David Phillip Page, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Richard T. Garren, Stephanie L. Theban, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Donald Mitchell Bingham, Donna Marie De Simone, Dorothy Sharon Gentry, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Oklahoma City, OK, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Robert Allen Nance, Department of Human Services, Oklahoma City, OK, for Defendants.
OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
*1 Defendants’ Motion to Compel Production of Materials Considered by Plaintiffs’ Expert Witnesses [Dkt. 490] and Defendants’ Motion for an Order Amending the Scheduling Order and Granting Additional Time to Submit Rebuttal to Plaintiffs’ Expert Report
1

(Milner) [Dkt. 491] are before the Court for decision. The motions have been fully briefed and a hearing was held on April 5, 2011.
Defendants seek an order compelling Plaintiffs to provide Defendants with all of the facts or data considered by Plaintiffs’ expert, Dr. Milner, and an extension of time for Defendants’ experts to provide their expert reports calculated from the date when Plaintiffs provide all the facts and data considered by Dr. Milner.
Fed.R.Civ.P. 26(a)(3)(B)(ii) provides that an expert report must include the facts or data considered by the expert in forming all opinions the witness will express. The Advisory Committee Notes explain that the rule was amended from requiring disclosure of “data or other information” to disclosure of “facts or data,” and further state:
The refocus of disclosure on “facts or data” is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel. At the same time, the intention is that “facts or data” be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients.
Fed.R.Civ.P. 26, Advisory Committee Comments, 2010 Amendments, Subdivision (a)(2)(B).
Plaintiffs provided Defendants with Dr. Milner’s expert report on February 17, 2011. Under the Court’s scheduling order, the report was not due until March 15, 2011. The report provided on February 17, 2011, did not include copies of the facts or data Dr. Milner considered in forming his opinions. The parties communicated and disagreed about whether Plaintiffs would provide any further documents concerning Dr. Milner’s report.1
On March 15, 2011, Plaintiffs provided Defendant with the equivalent of over 100,000 pages of facts or data Dr. Milner considered in forming his opinions. Some of the information was not in a format that was reasonably usable by Defendants. A usable copy of that data was provided on March 29, 2011.

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011)

At the hearing, Defendants contended that Plaintiffs still had not produced all of the facts or data considered by Dr. Milner.2 In particular, Defendants contend that Plaintiffs still have not provided the case files considered by Dr. Milner, the statutes and policies considered by Dr. Milner, and the basis for the case examples in his report.
The case files were originally produced by Defendants to Plaintiffs. Defendants argue that they want Plaintiffs to provide an exact copy of the case files Dr. Milner or his readers reviewed because they may have notations or highlights on them. Plaintiffs respond that the review was done electronically and that there are no notations or highlights. The court finds that notations or highlights on the case files do not constitute facts or data and do not need to be provided under Fed.R.Civ.P. 26(a)(2)(B)(ii).
*2 The statutes and policies considered by Dr. Milner are facts or data which must be provided under Fed.R.Civ.P. 26(a)(2)(B)(ii). Plaintiff’s are ordered to provide Defendants with copies of all statutes and policies Dr. Milner considered in forming his opinions or a citation to the specific statutes and policies, including identification of the year or version, if they are publicly available and readily accessible to Defendants.
The basis for the case examples contained in Dr. Milner’s report falls within the definition of facts or data which must be provided under Fed.R.Civ.P. 26(a)(2)(B)(ii). As explained at the hearing, the case examples were prepared by Dr. Milner from summaries prepared by his readers who obtained the facts from the case files. The summaries are therefore material considered by the expert that contains factual ingredients. The summaries are not drafts of the report protected from disclosure by Fed.R.Civ.P. 26(b)(4)(B).

Defendants’ expert reports is denied without prejudice. Defendants were not entitled to the expert report until March 15, 2011. At this point, Defendants have suffered a 14 day delay in receiving some of the facts or data in a reasonably usable format and a longer delay in receiving the facts or data ordered provided herein. However, there is no factual support in the record at this time that this delay will prevent Defendants’ experts from meeting the May 15, 2011 deadline for Defendants’ expert reports. Defendants have had Dr. Milner’s report, albeit without supporting facts or data, since February 17, 2011. Defendants have had substantial facts or data since March 15, 2011 and usable data since March 29, 2011. Moreover, Defendants have known which case files Plaintiffs were reviewing since Defendants produced those files to Plaintiffs. Defendants have not demonstrated that this information is not sufficient to enable their experts to provide reports by May 15, 2011. Defendants may, however, submit another request for additional time if the facts and circumstances develop such that Defendants’ experts cannot comply with the May 15, 2011 deadline.
Defendants’ Motion to Compel Production of Materials Considered by Plaintiffs’ Expert Witnesses [Dkt. 490] is granted in part and denied in part. Defendants’ Motion for an Order Amending the Scheduling Order and Granting Additional Time to Submit Rebuttal to Plaintiffs’ Expert Report (Milner) [Dkt. 491] is denied without prejudice.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 1344200

Defendants’ request for an extension of time to file Footnotes

1

In this regard, Plaintiffs’ counsel’s characterization of these communications at the hearing on April 5, 2011, was not a fair

characterization of their content.

2

In their papers and argument, Defendants refer to “considered materials” as a short-hand expression for the facts or data which

the expert report must include under Fed. R.Civ.P. 26(a)(2)(B)(ii). In light of the December 1, 2010 amendments to 26(a)(2)(B)(ii),

which sought to focus the disclosures on facts or data, the Defendants’ phrase is somewhat imprecise.

2

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011) 3

 
 D.G. v. Henry, Not Reported in F.Supp.2d (2011)

2011 WL 2746180 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail Stricklin, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
July 13, 2011.
Attorneys and Law Firms
Angela Rosalee Vicari, Phillip A. Geraci, Kaye Scholer LLP, Ira P. Lustbader, Marcia Robinson Lowry, William Kapell, Yasmin Grewal-Kok, Susan Lambiase, Miriam F. Ingber, Patrick S. Almonrode, Jason Michael Moff, Laurence Drew Borten, Philip Gellert Barber, Children’s Rights, John S. Cahalan, Kaye Scholer LLP, New York, NY, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Seymour Law Firm, Scott Alan Graham, Graham Allen & Brown PC, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department Of Human Services, David Phillip Page, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Richard T. Garren, Stephanie L. Theban, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis (TULSA–502), Tulsa, OK, Dorothy Sharon Gentry, Robert Allen Nance, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis (OKC), Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services (OKC), Oklahoma City, OK, for Defendants.
OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
*1 Plaintiffs’ Motion to Bar Shannon Rios From Testifying as an Expert Witness, [Dkt. 528], and Plaintiffs’ Motion to Require Defendants to Produce the
1

Documents Considered by Their Other Non–Retained Experts, [Dkt. 529], is before the undersigned United States Magistrate Judge for decision. The matters have been fully briefed and the matters are ripe for decision.
Motion to Exclude Shannon Rios
Defendants disclosed to Plaintiffs, as required by Fed.R.Civ.P. 26(a)(2)(A), that Dr. Rios may offer opinion or other expert testimony. Defendants also provided, as required by Fed.R.Civ.P. 26(a)(2)(C), a five page statement of the subject matter on which Dr. Rios is expected to present evidence and summary of the facts and opinions1 to which Dr. Rios is expected to testify. Dr. Rios’ expert testimony concerns her analysis of the expert report of one of Plaintiffs’ expert witnesses including the collection and analysis of data which was not part of Plaintiffs’ expert report.
Plaintiffs seek an order barring the expert testimony of Dr. Rios under Fed.R.Civ.P. 37(c)(1) because she did not provide an expert report as required by Rule 26(a)(2)(B). Alternatively, Plaintiffs seek the prompt production of an expert report. Defendants respond that Dr. Rios was not required to provide an expert report because she was not retained or specially employed to provide expert testimony in the case. If an expert report was required, Defendants assert that Dr. Rios should not be barred from testifying because Defendants have provided Plaintiffs with substantially all of the information Plaintiffs would have received in an expert report.
In this case, Dr. Rios analyzed Plaintiffs’ expert’s report and conducted additional work and analysis specifically to provide expert testimony regarding Plaintiffs’ expert’s report and conclusions. The work and analysis by Dr. Rios was outside the normal scope of her employment with Defendants.
Rule 26(a)(2)(B) states that witnesses must supply expert reports “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.”2 There is no Tenth Circuit authority addressing whether a 26(a)(2)(B) expert report is required from an employee of a party who is assigned to perform work or analysis outside the normal scope of the witness’s employment in order to provide expert testimony in the case. The courts that have addressed the issue have reached conflicting opinions. See Greenhaw v. City of Cedar Rapids, Iowa, 255 F.R.D. 484 (N.D.Iowa, 2009) (collecting cases).

D.G. v. Henry, Not Reported in F.Supp.2d (2011)

The undersigned finds that such an employee falls within the plain meaning of one who has been “specially employed to provide expert testimony in the case” within the meaning of Rule 26(a)(2)(B). When an employee is not performing his or her usual employment functions but has been assigned the job of an expert witness in the case, the term “specially employed” is an accurate description of the employee’s role. Under such circumstances the employee functions exactly like a non-employee expert witness. There is no reason to exempt such a witness from the requirement of an expert report. This construction does not require an expert report from every employee of a party who offers expert testimony, only those who are specially tasked to perform an expert function outside the usual employment role.

witnesses who are not obligated to do so under the Federal Rules of Civil Procedure.
Rule 26(a)(2)(C)(ii) obligates Defendants to produce disclosures for these witnesses which contain “a summary of the facts and opinions to which the witness is expected to testify.” According to the Committee Notes, Rule 26(a)(2)(C) was added to the Federal Rules of Civil Procedure in December 2010 to resolve a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) from witnesses who are exempt from the report requirement. Even before the effective date of Rule 26(a)(2)(C) at least one court rejected the use of interrogatories to expand the reporting obligations of a witness not subject to Rule(a)(2)(B) report requirements. See Adams v. Fujitsu, 2010 WL 130002 *5 (D.Utah).

*2 Although Defendants did not provide an expert report from Dr. Rios, Rule 37(c)(1) does not support barring Dr. Rios from testifying as an expert witness. Defendant’s failure to provide the expert report was substantially justified in light of the split of authority on the issue. Further, the lack of an expert report was harmless to Plaintiffs as Defendants have provided Plaintiffs substantially all of the information an expert witness report would have contained.3
Plaintiffs’ Motion to Bar Shannon Rios From Testifying as an Expert Witness, [Dkt. 528], is DENIED.
Motion to Compel Production
Plaintiffs seek an order compelling DHS to produce documents responsive to their Expert Requests for Production of Documents for the non-retained expert witnesses DHS identified in their June 9 and June 15, 2011 witness disclosures. In accordance with Rule 26(a)(2)(C)(ii), Defendants have supplied the required summary of facts and opinions to which these witnesses are expected to testify. Defendants assert that requiring responses from these witnesses to the requests for production of documents would effectively impose the obligation of providing expert witness reports on these
Footnotes

Rule 26(a)(2)(C) allows the court discretion to order a witness to provide more or less information than that outlined in the rule. In this case, however, Plaintiffs have not presented any reason for the court to expand the disclosure requirements contained in the rule. Plaintiffs’ arguments for an order compelling production do not contain any specific discussion of the information submitted on the disclosures, any attempt to demonstrate that the information submitted is insufficient, or any specific reference to the information sought by the requests for production. As a result, the undersigned is not convinced of the necessity for an order compelling the production of any further information pertaining to these witnesses.
Plaintiffs’ Motion to Require Defendants to Produce the Documents Considered by Their Other Non–Retained Experts, [Dkt. 529] is DENIED.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 2746180

1

Subsequently Defendants also provided Plaintiffs with Dr. Rios’ statistical test results and the four data sets.

2

Dr. Rios does not regularly give expert testimony so an expert report is not required under that provision of 26(a)(2)(B).

3

Plaintiffs make no claim in their reply brief to the contrary.

2

D.G. v. Henry, Not Reported in F.Supp.2d (2011) 3

 
 D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011)

2011 WL 2881461 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail Stricklin, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
July 15, 2011.
Attorneys and Law Firms
Angela Rosalee Vicari, John S. Cahalan, Phillip A. Geraci, Kaye Scholer LLP, New York, NY, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Seymour Law Firm, Scott Alan Graham, Graham Allen & Brown PC, Tulsa, OK, Ira P. Lustbader, Marcia Robinson Lowry, Miriam F. Ingber, Patrick S. Almonrode, William Kapell, Yasmin Grewal–KOK, Susan Lambiase, Children’s Rights, New York, NY, for Plaintiffs.
Scott David Boughton, Office of the Attorney General, Catherine Ann O’Leary, Department Of Human Services David Phillip Page, Donald Mitchell Bingham, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Richard T. Garren, Stephanie L. Theban, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Dorothy Sharon Gentry, Robert Allen Nance, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Department of Human Services, Oklahoma City, OK, for Defendants.
OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
*1 Plaintiff Children’s Motion for Leave to File Two Rebuttal Expert Reports, [Dkt. 539], is before the undersigned United States Magistrate Judge for decision.
1

The motion has been briefed on an expedited schedule and is ripe for decision.
Pursuant to the Second Amended Scheduling Order Plaintiffs served their expert witness reports on March 15, 2011 and Defendants served their expert witness reports on June 9 and June 15, 2011. Plaintiffs now seek leave to name two additional expert witnesses and file reports, “solely to rebut certain assertions contained in the reports of Defendants’ proposed experts regarding the work performed by Dr. Jerry Milner and Mr. John Goad, two of Plaintiffs’ experts.” [Dkt. 539, p. 1]. Plaintiffs contend that Defendants’ experts criticize the reports by Dr. Milner and Mr. Goad and raise what Plaintiffs call “highly technical statistical issues.” Id. at 4. Plaintiffs assert that Dr. Milner and Mr. Goad are not experts in statistics beyond what are usually and customarily used in their fields. Plaintiffs therefore seek to name additional expert witnesses to rebut the statistical arguments asserted by Defendants’ statisticians and also to rebut the criticisms about the methodology employed by Dr. Milner and Mr. Goad. According to Plaintiffs, Fed.R.Civ.P. 26(a)(2)(D)(ii) expressly contemplates the use of such rebuttal reports and courts in the Tenth Circuit have permitted such reports when the rebuttal experts have special expertise in the matters under attack.
Defendants argue that no additional expert witnesses should be permitted. Defendants assert that the experts will not be offering rebuttal evidence but evidence to defend and bolster the work performed by Dr. Milner and Mr. Goad. Defendants assert that these witnesses should be able to defend their own work. They further assert that interjecting new expert witnesses at this late date would be prejudicial to them.
Fed.R.Civ.P. 26(a)(2)(D) provides in relevant part:
Absent a stipulation or court order, [expert] disclosures must be made:
* * *
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified [in another party’s expert report], within 30 days after the other party’s disclosure.
While the testimony of the expert witnesses Plaintiffs seek to add will challenge the testimony of Defendants’ experts, the proposed testimony does not constitute rebuttal evidence as that term is used in Rule 26(a)(2)(D)(ii). Plaintiffs have not asserted that Defendants’ expert reports identified new subject matter.

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011)

Instead, Defendants’ expert reports respond to and rebut the subjects identified by Plaintiffs’ experts. Plaintiffs say as much in their own papers: “[t]he eight expert reports served by Defendants addressing Dr. Milner and Mr. Goad assert various statistical methodological challenges to the Milner and Goad reports and, in that sense, are largely rebuttal in nature.” [Dkt. 539, pp. 1–2]. The additional expert evidence Plaintiffs seek to add is more properly viewed as strengthening or bolstering the testimony of Plaintiffs’ own experts, Dr. Milner and Mr. Goad. Such evidence is not “intended solely to contradict or rebut evidence on the same subject matter identified by another party.” The undersigned finds that Plaintiffs’ proposed additional expert testimony is not rebuttal evidence as that term is used in Rule 26(a)(2)(D)(ii) and that rule does not provide authority for Plaintiffs request.
*2 The refusal or allowance of rebuttal testimony is a matter of the court’s discretion. Koch v. Koch Industries, Inc., 203 F.3d 1202, 1224 (10th Cir.2000).1 The undersigned finds that the factors in this case counsel against granting permission to name additional expert witnesses.

expert witnesses also opens up the possibility of the need for Defendants to file further expert witness reports.
In Tyson the Court was faced with an analogous situation. The Court considered whether a party should be permitted to supplement an expert report and ruled that the right to supplement under Rule 26(e) is “not without limits.” Id. at 1. The Court noted several cases where courts have ruled that supplemental reports that state additional grounds or rationales or seek to strengthen or deepen opinions expressed in the original expert report exceed the bounds of permissible supplementation and are subject to being excluded. Id. (quoting Cohlmia v. Ardent Health Servs., 2008 WL 3992148 (N.D.Okla), further citations omitted). Were it otherwise, a situation could develop where there would be no finality to expert reports as each side could continue to supplement to buttress its case and modify previous opinions. Such a system would eviscerate the expert report requirements of Rule 26, would wreak havoc in docket control, and would amount to unlimited expert opinion presentation. Id. at *2. The same concerns are reasonably applied to rebuttal expert witnesses in this case.2

In this case Plaintiffs’ experts Dr. Milner and Mr. Goad submitted expert reports. In response Defendants produced expert witness reports which Plaintiffs describe as rebutting their experts. Plaintiffs assert the need to file reports by additional experts to rebut Defendants’ experts. In reality, what Plaintiffs seek is to file what would essentially be a sur-rebuttal expert witness report. Such a report would serve to bolster or strengthen the testimony of Plaintiffs’ original experts. Plaintiffs have not demonstrated that such evidence is necessary to the presentation of their case. In fact, they claim that Dr. Milner and Mr. Goad are qualified to and capable of defending their own reports. In view of the foregoing, the undersigned finds that Plaintiffs have not demonstrated the need for the addition of more experts so as to disrupt the schedule under which the court and the parties have been operating.
Further, the addition of the witnesses would prejudice Defendants because it is not reasonable to expect Defendants to receive additional expert witness reports on July 15, evaluate the reports, depose the witnesses, and file Daubert motions by August 1. The addition of more
Footnotes

In sum, Plaintiffs will not be granted the opportunity to name two additional expert witnesses because: Plaintiffs’ general description of the proposed testimony indicates that the additional evidence is not necessary to the presentation of Plaintiffs’ case; adding evidence would merely serve to strengthen Plaintiffs’ expert witnesses testimony; adding more expert witnesses at this stage would be disruptive to the schedule; and the addition of expert witnesses at this stage would be prejudicial to Defendants.
*3 Plaintiff Children’s Motion for Leave to File Two Rebuttal Expert Reports, [Dkt. 539], is DENIED.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 2881461

1

The undersigned is not persuaded by the cases cited by Plaintiffs which have permitted the addition of rebuttal expert witnesses.

Those cases were decided on the basis of the particular circumstances presented which differ from the ones presented here and

demonstrate the application of the court’s discretion under the facts presented. They are not particularly instructive because

each set of facts must be analyzed on its own merits.

2

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011)

2

In Oklahoma v. Tyson Foods, Inc., 2009 WL 252337 (N.D.Okla.), the Court also denied leave to submit rebuttal expert reports.

3

 
 D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011)

2011 WL 5904660 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G., Gail Stricklin, et al., Plaintiffs, v.
C. Brad HENRY, in his official capacity as Governor of the State of Oklahoma, et al.,
Defendants.
No. 08–CV–74–GKF–FHM. |
Nov. 23, 2011.
Attorneys and Law Firms
Angela Rosalee Vicari, John S. Cahalan, Phillip A. Geraci, Kaye Scholer LLP, Ira P. Lustbader, Marcia Robinson Lowry, William Kapell, Miriam F. Ingber, Patrick S. Almonrode, Jason Michael Moff, Laurence Drew Borten, Philip Gellert Barber, Sarah Teresa Russo, Children’s Rights, New York, NY, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Seymour Law Firm, Scott Alan Graham, Graham Allen & Brown PC, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, Department of Human Services, David Phillip Page, Donald Mitchell Bingham, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Richard T. Garren, Stephanie L. Theban, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Dorothy Sharon Gentry, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Robert Allen Nance, Department of Human Services, Oklahoma City, OK, for Defendants.
OPINION AND ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
*1 OKDHS Defendants’ Motion to Reconsider Opinion and Order [Dkt. 693] and Plaintiff Children’s Motion to Compel Production of Jay Dee Chase’s Medical Records and the Deposition of his Doctor [Dkt. 712] have been
1

fully briefed and are before the Court for decision. The motions are considered together because they are related.
In OKDHS’s motion [Dkt. 693], Defendants seek a protective order to prevent Plaintiffs from deposing Jay Dee Chase because of his medical condition. Defendants attached an affidavit from Mr. Chase’s doctor in support of the motion. In Plaintiff Children’s motion [Dkt. 712], Plaintiffs seek access to Mr. Chase’s medical records and a deposition of the doctor who submitted the affidavit. In their response, [Dkt. 726], Defendants appear to suggest that a deposition of Mr. Chase under certain conditions would be appropriate.
A protective order completely shielding a relevant witness from a deposition is not to be entered without full consideration of all the facts and circumstances. In developing those facts, the party opposing the protective order should be allowed reasonable discovery. At the same time, Mr. Chase has a privacy interest in his medical condition which deserves consideration. In this case, Defendants seek a protective order based on Mr. Chase’s medical condition but object to Plaintiffs’ discovery regarding his medical condition.
The Court finds that the affidavit of the doctor is sufficient to support an order placing reasonable restrictions on Mr. Chase’s deposition but it is not sufficient to support completely shielding Mr. Chase from any deposition without allowing Plaintiffs some discovery. In this regard, the fact that Mr. Chase continues to serve as a Commissioner despite his medical condition is significant to the Court’s decision. If Defendants persist in seeking a protective order completely shielding Mr. Chase from a deposition, then Plaintiff Children’s Motion to Compel Production of Jay Dee Chase’s Medical Records and the Deposition of his Doctor [Dkt. 712] will be granted. If Mr. Chase would prefer to give his deposition at the courthouse under the supervision of the undersigned and under reasonable restrictions, including the attendance of Mr. Chase’s doctor, if desired, Defendants may withdraw their motion for a protective order [Dkt. 693] and Plaintiff’s motion to compel [Dkt. 712] will be denied.
Defendants shall file a notice of their position in response to this Order by November 30, 2011.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 5904660

D.G. ex rel. G. v. Henry, Not Reported in F.Supp.2d (2011) 2

 
 D.G. ex rel. Strickland v. Yarbrough, Slip Copy (2011)

2011 WL 6960613 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
D.G., by Next Friend G. Gail STRICKLAND et al., Plaintiffs, v.
Brad YARBROUGH, Chairman of the Oklahoma Commission for Human Services, et al., Defendants.
No. 08–CV–074–GKF–FHM. | Dec. 16, 2011.
Attorneys and Law Firms
Ira P. Lustbader, Marcia Robinson Lowry, William Kapell, Children‘s Rights, Angela Rosalee Vicari, John S. Cahalan, Phillip A. Geraci, New York, NY, Frederic Dorwart, Paul Demuro, Frederic Dorwart Lawyers, R. Thomas Seymour, Seymour Law Firm, Scott Alan Graham, Graham Allen & Brown PC, Tulsa, OK, for Plaintiffs.
Catherine Ann O’Leary, David Phillip Page, Donald Mitchell Bingham, Donna Marie De Simone, Holly M. Hillerman, John Patrick Mensching, Jr., Kristopher Edward Koepsel, Richard T. Garren, Stephanie L. Theban, Thomas Martin Askew, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, Dorothy Sharon Gentry, Joseph W. Strealy, Richard Weldon Freeman, Jr., Richard Alan Resetaritz, Robert Allen Nance, Melvin Curtis Hall, Riggs Abney Neal Turpen Orbison & Lewis, Oklahoma City, OK, for Defendants.
Opinion
OPINION AND ORDER
GREGORY K. FRIZZELL, District Judge.

[Dkt. # 210].
In denying defendants’ earlier motion, the court engaged in the three-prong analysis set forth in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) and applied by the Tenth Circuit in J.B. v. Valdez, 186 F.3d 1280 (10th Cir.1999), and Joseph A. ex rel. Wolfe v. Ingram, 262 F.3d 1113 (10th Cir.2001). In J.B. and Joseph A., both of which involved foster children, the Tenth Circuit held that Younger requires a federal court to refrain from hearing an action over which it has jurisdiction when the federal proceeding would (1) interfere with an ongoing state judicial proceeding; (2) that implicates important state interests; and (3) affords an adequate opportunity to raise the federal claims. J.B., 186 F.3d at 1291; Joseph A., 275 F.3d at 1267. Further, in Joseph A., the Tenth Circuit held that where prospective injunctive or declaratory relief is sought, the court should engage in a provision-by-provision Younger analysis to determine which forms of relief interfered with state court proceedings and which did not. 275 F.3d at 1272.
The court denied defendants’ Younger motion, finding at that relatively early stage in the case that some of the relief sought by plaintiffs’ Complaint could possibly survive the Younger analysis. However, it also ordered plaintiffs to file a statement of relief sought and acknowledged certain forms of relief traditionally sought in other foster care cases might not survive Younger scrutiny. [Dkt. # 217, Transcript of Hearing on January 7, 2009 at 136–137].
On February 13, 2009, plaintiffs filed their Statement of Relief Sought. [Dkt. # 241]. The statement set out seven general proposed forms of relief: imposition of caseload limits; better education and training for workers and foster parents; increases in placement options; more effective monitoring of the safety of children in foster care; a requirement that DHS meet federal outcome measures; improvements in DHS’s quality assurance system; and appointment of a neutral monitor.

*1 Before the court is defendants’ Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris, [Dkt. # 562]. Defendants, the Commissioners of the Oklahoma Commission for Human Services and the Executive Director of the Oklahoma Department of Human Services, seek dismissal of this action pursuant to Fed.R.Civ.P. 12(b)(1) on the Younger abstention doctrine. Defendants’ first Younger motion [Dkt. # 72] was denied by the court on January 7, 2009.

Defendants, in their renewed motion, assert all seven proposed forms of relief run afoul of Younger, because every child in the class has been adjudicated to be deprived and is the subject of ongoing juvenile proceedings in Oklahoma district courts. Plaintiffs, in response, contend that Brown v. Day, 555 F.3d 882 (10th Cir.2009), decided shortly after the court denied defendants’ first Younger motion, compels a conclusion that abstention is neither necessary nor appropriate in this

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D.G. ex rel. Strickland v. Yarbrough, Slip Copy (2011)

matter.

890–91.1

A. The Brown Analysis
*2 In Brown, a Medicaid beneficiary sued the Director of Kansas’s Division of Health Policy and Finance (“HPF”) in federal court pursuant to 42 U.S.C. § 1983 after the director issued a final order terminating plaintiff’s Medicaid benefits because she was no longer “medically needy” as the result of an amendment of Kansas law deeming trust resources available to a recipient of medical assistance to be “available assets.” Id. at 886. The district court granted defendant’s Younger motion, finding abstention was mandatory. On appeal, the Tenth Circuit reversed the district court’s decision. In doing so, the court articulated a threshold issue to be decided as part of the first prong of the three-prong Younger analysis. The court explained:
The initial prong of the Younger inquiry involves two sub-parts. This court must determine whether there is an ongoing state proceeding. The court must also decide whether that proceeding is the type of state proceeding that is due the deference accorded by Younger abstention.

Application of this three-part inquiry to the case at hand yields mixed results:
1. Whether the state proceeding is optional or mandatory—Plaintiffs seek relief focused on changes in DHS policies and procedures. Thus, they contend their action is directed at an executive rather than a judicial function. However, defendants argue these changes could potentially impact individual juvenile cases pending in state court. The individual cases are mandatory rather than optional.
2. Whether the state court proceeding is itself the “wrong” sought to be redressed—Plaintiffs disclaim any intent to involve themselves in individual cases pending in state court. The “wrongs” for which they seek redress are DHS policies and procedures that plaintiffs contend have a systemic harmful effect on the welfare of foster children. Once again, however, defendants point to potential interference with individual juvenile proceedings in state court.
*3 3. Whether plaintiffs have committed any “bad acts”—Clearly, foster children in state court juvenile cases are not there by virtue of any “bad acts” of their own. Nonetheless, the proceedings are coercive in the sense that the children are not voluntary participants.

Id. at 888 (citations omitted) (emphasis in original). The court distinguished between administrative proceedings that are remedial in nature and proceedings that are coercive. Id. It instructed that if the district court determines a proceeding is remedial in nature, then it should move on to the remaining prongs of the Younger analysis. However, if the court determines the proceeding is coercive, Younger abstention is mandatory, and the court need proceed no further.
Citing Kercado–Melendez v. Aponte–Roque, 829 F.2d 255 (1st Cir.1987), the Tenth Circuit identified three factors relevant to the determination of whether a proceeding was coercive or remedial in nature: (1) whether the state proceeding is an option available to the federal plaintiff on her own initiative to redress a wrong inflicted by the state or instead, the participation of the federal plaintiff in the state administrative proceeding is mandatory; (2) whether the state proceeding is itself the wrong which the federal plaintiff seeks to correct via injunctive relief under section 1983; and (3) whether the federal plaintiff has committed an alleged bad act. Id. at

The court’s Younger analysis is complicated by the fact that—unlike Brown, where the aggrieved plaintiff sought one remedy (reversal of an agency decision terminating her Medicaid benefits)—plaintiffs in this case seek seven types of relief, all prospective in nature. As in Joseph A., resolution of the Younger issues requires examination of each of the specific remedies sought.
B. The Middlesex Analysis
Under Middlesex, the court reviews each of the seven requests for relief with an eye to whether it (1) interferes with an ongoing state judicial proceeding; (2) that implicates important state interests; and (3) affords an adequate opportunity to raise the federal claims. J.B., 186 F.3d at 1291; Joseph A., 275 F.3d at 1267.
1. Caseload Limits
Plaintiffs seek to compel defendants to establish limits on

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D.G. ex rel. Strickland v. Yarbrough, Slip Copy (2011)

the caseloads of all case-carrying workers and supervisors based on standards set for accreditation of public child welfare agencies set by the Council on Accreditation (“COA”) and the professional standards set by the Child Welfare League of America (“CWLA”). Defendants have argued that these limits could potentially interfere with decisions in children’s individual cases because, for example, a state court judge might feel constrained to request a specific caseworker for a child if it would cause the worker’s caseload to exceed the new standards.
The court concludes that the requested relief of caseload limits would not interfere with the state court’s ability to conduct juvenile proceedings. Moreover, a juvenile court is not an adequate forum in which plaintiffs, or other similarly situated juveniles, can raise their claims of constitutional violations resulting from excessive caseloads.
2. Education/Training
Plaintiffs seek to force defendants to develop and implement educational qualifications and a comprehensive pre-service and in-service training program for caseworkers, supervisors, foster parents and adoptive parents, based on standards for training established by the COA and CWLA. Defendants have not identified, and the court cannot conceive, of any way in which this relief would interfere with on-going state juvenile proceedings. Further, state court juvenile proceedings do not afford an adequate opportunity to seek such relief.
3. Placement Resources
Plaintiffs ask the court to order defendants to have an assessment performed by qualified professionals to determine the need for additional placements to provide the necessary range of placement options for foster children, the time period during which the placements will be developed and the steps necessary to develop placements. It does not appear this remedy would interfere with individual juvenile cases, nor do those cases afford affected juveniles the opportunities to raise such a claim for relief.
4. Monitoring Safety of Children in Placement
*4 Plaintiffs seek an order requiring DHS workers to visit all children in placement and their foster parents as

frequently as set forth in the standards set by the COA and the CWLA to ensure that the children are safe; to comply with state regulations for investigation of complaints of abuse and neglect of children in placement; and to comply with state regulations for approval, screening, oversight and utilization of all placement types that house foster children. The court concludes this form of relief would not interfere with individual children’s state court proceedings. In addition, individual state court juvenile proceedings do not afford affected juveniles an adequate opportunity to raise this claim for systemic relief.
5. Outcomes for Children
Plaintiffs ask the court to order defendants to meet “outcome measures set by the U.S. Department of Health and Human Services (“DHHS”), including, for example, the DHHS measures aimed at protecting foster children from abuse and neglect, ensuring permanency and stability in their living situations, and preserving the continuity of family relationships and connections.” Defendants argue decisions about length of stay in foster care and whether and to what extent family relationships are maintained are matters at the core of what a juvenile court decides in an individual child’s case.
This broad-brush, unspecific claim for relief raises serious concerns, insofar as court-ordered compliance with certain “outcome measures” may well interfere, either directly or indirectly, with ongoing state juvenile proceedings. The state proceedings involve important state interests, as the judges presiding over such proceedings look to state law for the resolution of such matters. Further, the state proceedings may in many cases afford an adequate opportunity to raise the juveniles’ claims.
6. Quality Assurance/Data
Plaintiffs seek an order requiring that defendants ensure DHS “has a quality assurance (“QA”) system consistent with the standards of the COA and CWLA standards that is capable of measuring the quality of treatment and services” provided to foster children. The QA system should include, they assert, predefined benchmarks for measuring the quality of family foster care services and the collection and management review of valid, reliable data on a regular basis to monitor the functioning of DHS operations and the quality of its service delivery.

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D.G. ex rel. Strickland v. Yarbrough, Slip Copy (2011)

Defendants argue this type of order would intrude on the jurisdiction of juvenile court judges, who daily engage in review of the adequacy of care given and services provided to foster children.
Although this claim for relief is also general and unspecific, the defendants have not explained how a quality assurance system focused on monitoring the “functioning of DHS operations and the quality of its service delivery” would improperly interfere, either directly or indirectly, with ongoing state juvenile proceedings. Nor have defendants explained how individual state court juvenile proceedings afford an adequate opportunity to raise such a claim for systemic relief.
7. Monitoring/Enforcement
*5 Plaintiffs ask the court to appoint a neutral monitor to oversee compliance with any order the court enters pursuant to Fed.R.Civ.P. 65(d). Additionally, the court would retain jurisdiction to oversee compliance with that order. Plaintiffs state that any de minimus violation of the relief granted by the court would not constitute a violation of the court’s order, and “Plaintiff Children do not intend the remedy in this case to have any preclusive effect except between the parties hereto during the term such relief is in effect.” [Dkt. # 241 at 6–7]. The court concludes that the relief requested does not interfere with any on-going juvenile proceedings, and that state juvenile proceedings do not afford an adequate opportunity to obtain such relief.

interference with state court proceedings. Those remedies include plaintiffs’ requests for caseload limits; education and training of DHS caseworkers and supervisors, foster parents and adoptive parents; developing additional placement options for foster children; improved monitoring of the safety of foster children; quality assurance; and for appointment of a neutral monitor. The court has serious concerns about the direct or indirect impact on individual juvenile proceedings of imposing outcome measures set by the U.S. Department of Health and Human Services. Whether this requested remedy is subject to Younger abstention will depend, however, on the language and terms of the relief, if any, granted after trial of this matter.
The court is mindful of the Tenth Circuit’s directive that “[a]bstention is the exception, not the rule,” and should rarely be invoked “because the federal courts have a virtually unflagging obligation ... to exercise the jurisdiction given them.” Joseph A., 275 F.3d at 1267 (quotations and citations omitted). Thus, having found that at least some of the remedies sought by plaintiffs do not appear to pose a risk of interference with state court juvenile proceedings, the court rejects defendants’ Younger challenge.
C. Conclusion
For the reasons set forth above, defendants’ Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Younger v. Harris [Dkt. # 562] is denied.

In summary, the court concludes that most of the general forms of relief requested by plaintiffs do not pose a risk of

Footnotes

1

The court noted Younger originally sought to prevent federal courts, sitting in equity, from enjoining state prosecution of criminal

defendants. Through a series of subsequent decisions, the Younger doctrine was expanded to state civil enforcement actions and

administrative agency proceedings. Id. at 889–90.

End of Document

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

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 Case 4:08-cv-00074-GKF-FHM Document 859 Filed in USDC ND/OK on 04/17/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G., by Next Friend G. Gail Strickland, et al., )

)

Plaintiffs,

)

)

v.

)

)

BRAD YARBROUGH, Chairman of the

)

Oklahoma Commission for Human Services, )

et al.,

)

)

Defendants.

)

Case No. 08-CV-074-GKF-FHM

JUDGMENT Pursuant to the court’s Opinion and Order of March 31, 2013 [Dkt. #858] granting plaintiffs’ Motion for Award of Class Counsel Fees and Expenses, judgment is hereby entered in favor of plaintiffs, DG, et al., and against defendants, Brad Yarbrough, et al., for attorney fees and expenses in the amount of $6,011,888.80. ENTERED this 17th day of April, 2013.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G., by Next Friend G. Gail Strickland et al., )

)

Plaintiffs,

)

)

v.

)

)

BRAD YARBROUGH, Chairman of the

)

Oklahoma Commission for Human Services, )

et al.,

)

)

Defendants.

)

Case No. 08-CV-074-GKF-FHM

OPINION AND ORDER Before the court is the Report and Recommendation of Magistrate Judge Frank H. McCarthy [Dkt. #846] on plaintiffs’ Motion for Award of Class Counsel Fees and Expenses [Dkt. #790]. Magistrate Judge McCarthy recommended plaintiffs be awarded attorney fees and expenses totaling $7,031,928. Defendants have raised four objections to the Magistrate Judge’s Report and Recommendation. [Dkt. #850].
I. Standard of Review The district court must conduct a de novo review of the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1); Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.1996) (“De novo review is required after a party makes timely written objections to a magistrate's report. The district court must consider the actual testimony or other evidence in the record and not merely review the magistrate's report and recommendations.”). The court may

“accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
II. Procedural Background This class action was filed pursuant to 42 U.S.C. § 1983 on behalf of all foster children in the legal custody of the Oklahoma Department of Human Services (“DHS”) against members of the Oklahoma Commission for Human Services and the director of DHS. Plaintiff children sued defendants in their official capacities, alleging policies and procedures adopted by defendants have subjected foster children to significant, ongoing harm and risk of harm, deprivation of the chance for safe and stable childhoods and violation of their constitutional and statutory rights. Plaintiffs asserted claims for violation of their substantive due process right under the Fourteenth Amendment to be free from harm and risk of harm; violation of their liberty and privacy rights guaranteed by the First, Ninth and Fourteenth Amendments; and violation of their procedural due process rights under the Fifth and Fourteenth Amendments based on deprivation of state law entitlements. [Dkt. #2]. Additionally, plaintiffs asserted claims for violation of the Federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 621, et seq., and breach of federal contractual obligations to third party beneficiaries. [Id.]. The court granted defendants’ motion to dismiss the last two claims. [Dkt. #220]. On May 5, 2009, the court, pursuant to Fed. R. Civ. P. 23, certified a class consisting of all children who are or will be in the legal custody of DHS (1) due to a report or suspicion of abuse or neglect; or (2) who are or will be adjudicated deprived due to abuse or neglect. [Dkt. #272 at 17]. On December 1, 2011, the court granted defendants’ motion for summary judgment on plaintiffs’ claims for violation of liberty and privacy rights and violation of their procedural due
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process rights. [Dkt. #741]. The court denied defendants’ motion for summary judgment with
respect to plaintiffs’ claim for violation of their substantive due process rights. [Id.].
On January 4, 2012, the case settled. [Dkt. #768]. The Compromise and Settlement
Agreement (“Settlement Agreement”) executed by the parties contained the following
provisions:
1.2 Class Counsel shall mean Angela R. Vicari, Frederic Do rwart, Ira P. Lustbader, John S. Cahalan, Marcia R. Lowry, Paul DeMuro, Phillip A. Geraci, R. Thomas Seymour, Scott A. Graham, William Kapell, Miriam F. Ingber, Patrick S. Almonrode, Jodi K. Miller, Laurence D. Borten, Philip G. Barber, and Sarah T. Russo.
1.3 Class Counsel Fees and Expenses shall mean reason able fees an d expenses of Class Counsel in an am ount to be determined by the Court, provided the services and expens es of Frederic Dorwart Lawyers ha ve been and will b e provided pro bono for the benefit of the Pl aintiff Class. The Court shall retain jurisdiction to make this determination. The Na med Plaintiffs and Next Friends shall not seek or be aw arded compensation in return for th eir role in the Class Action Litigation. Settling Defe ndant stipulates that Clas s Counsel is entitled to Class Counsel Fees and Expenses but rese rves the right to dispute the amount of Class Counsel Fees and Expenses. [Dkt. #770-1].
[Dkt. #770-1 at 3].
In the pending motion, plaintiffs seek an award of reasonable attorney fees under 42
U.S.C. § 1988 and ¶ 1.3 of the Settlement Agreement. They requested an award of $8,345,588
for 36,188 billable hours1 and $1,174,831 in reimbursable expenses, for a total of $9,520,419.
Defendants opposed the motion, arguing that neither the hourly rates nor the number of hours
were reasonable, and asserting that the court should either disallow an award entirely or limit the
amount of the award to between $2.6 and $3.7 million.
1 Total plaintiffs’ attorney hours were 39,822 (excluding 2,246 hours of the Dorwart firm’s time and 4,007 hours of Kaye Scholer’s time (both pro bono), and 3,817 hours spent by “temporary attorneys,” for which plaintiffs seek recovery as an expense). [Dkt. #790 at 8]. Plaintiffs, in their exercise of billing judgment, excluded 3,634 hours of time expended by Children’s Rights attorneys. [Dkt. #791, Marcia Lowry Dec., ¶ 12]. Defendants’ counsel (Riggs, Abney and Crowe & Dunlevy) expended 38,850 hours on the case, exclusive of work by DHS staff and in-house counsel. [Dkt. #790 at 25].
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The attorney fee motion was referred to Magistrate Judge McCarthy, who issued a Report
and Recommendation. Defendants have filed four objections.
III. Magistrate Judge’s Recommendation
The Magistrate Judge recommended that:
1. The court reject defendants’ argument that plaintiffs may only recover fees and expenses for the attorneys specifically named as “Class Counsel” in ¶ 1.2 of the Settlement Agreement. [Dkt. #846 at 3-4].
2. The court reject defendants’ argument that the fee award should be reduced because only one of the five claims asserted in the complaint survived dismissal and/or summary judgment. [Id. at 5].
3. The court reject defendants’ argument that the overall fee award be reduced based on alleged unethical conduct by plaintiffs’ attorneys in communicating with Steven Dow, a member of the Oklahoma Commission for Human Services. [Id. at 5-6].
4. Plaintiffs’ attorneys be paid for travel time at a rate of $50 per hour and reimbursed for reasonable travel expenses. [Id. at 8].
5. Local hourly rates of up to $300 be applied to all of plaintiffs’ attorneys, except that a rate of $450 per hour should apply to Marcia R. Lowry; and the court accept defendants’ expert report on the rates for the individual attorneys. [Id. at 9-11].
6. Local hourly rates of $60-$75 per hour be applied to paralegal and intern time, for an average of $70 per hour, as recommended by defendants’ expert. [Id. at 12].
7. The court reduce plaintiffs’ total lodestar fee2 of $6,017,215 by 7.5 percent (as suggested by plaintiffs’ expert) to account for inadequate descriptions of tasks in billing entries, duplication of effort and lack of billing judgment. [Id. at 1516].
8. A total 209 of the 9,047 hours of paralegal time be eliminated because it represented work that was secretarial in nature and not separately billable to a client; and the remaining 8,838 hours be reduced by 7.5 percent based on lack of billing judgment. [Id. at 15-16].
2 The lodestar is determined by multiplying the hours reasonably expended by plaintiffs’ counsel on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Case v. Unified School Dist. No. 233, Johnson County, 157 F.3d 1243, 1249 (10th Cir. 1998).
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9. The court award attorney fees totaling $5,596,010, paralegal/intern fees totaling $572,260; and travel fees totaling $139,500. [Id. at 16-17].
10. Plaintiffs’ request for reimbursement of expenses totaling $1,174,831 be reduced by $450,672, with reductions broken down as follows:
 costs recoverable under 28 U.S.C. § 1920 (requiring filing of a bill of costs)--$193,267.60;
 expert deposition preparation--$65,571.183 (should be $68,571.18)  litigation support--$16,450.13;  conference meals--$546.69;  working meals--$6,576.22;  other inappropriate meal requests--$3,000.00;  other transportation--$50,121.87;  travel agent fees--$2,100.00  cancelled flights--$7,050.00  Amtrak charges--$825.00  Kaye Scholer law firm inappropriate charges for travel and meals--
$3,048.02;  Kaye Scholer law firm litigation expense--$49,625.74;  Temporary attorneys--$52,490.00. [Id. at 28].
11. Overall, the Magistrate Judge recommended an award to plaintiffs of attorney fees and expenses in the total amount of $7,031,928, broken down as follows:
 Attorney fees of $5,596,010;  Travel time of $139,500;  Paralegal and intern time of $572,260; and  Reimbursable expenses of $724,158 [Id.].
IV. Defendants’ Objections
Defendants object to the Report and Recommendation on the following bases: (A) the
Magistrate Judge erred as a matter of law in recommending an award of fees for attorneys not
identified in the Settlement Agreement as “Class Counsel;” (B) the Magistrate Judge erred as a
matter of law and ignored the clear weight of evidence in failing to recommend a reduction in
fees for plaintiffs’ attorneys’ alleged inappropriate contact with Steven Dow; (C) the
3 The Magistrate Judge recommended excluding $68,571.18 in expert deposition preparations, but deducted only $65,571.18. [Dkt. #846 at 19-20]. The entire $68,571.18 is excluded in the court’s calculations.
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recommended reduction of 7.5 percent to plaintiffs’ requested fee award is insufficient; and (D) plaintiffs’ claimed expenses for temporary attorneys and Kaye Scholer’s litigation support should be disallowed in their entirety.
V. Analysis A. Award of Fees for Work by Attorneys Not Listed as “Class Counsel” Defendants argue that under ¶ 1.2 and ¶ 1.3 of the Settlement Agreement, plaintiffs waived their right to seek legal fees under 42 U.S.C. § 1988 for work by attorneys not listed as “Class Counsel” in ¶ 1.2. The Supreme Court has held that a prevailing plaintiff in a civil rights action “should ordinarily recover an attorney’s fee unless special circumstances would render an award unjust.” Ellis v. University of Kansas Medical Center, 163 F.3d 1186, 1200 (10th Cir. 1999) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The presumption in favor of attorneys’ fees may be overcome by waiver of fees by the prevailing plaintiff. Id. However, “[a]bsent express language in the settlement agreement waiving the right to recover attorney fees, the intent of the parties governs.” Id. Waiver is “the voluntary and intentional relinquishment of a known right.” Barringer v. Baptist Healthcare of Oklahoma, 22 P.3d 695, 700-01 (Okla. 2010) (quoting Faulkenberry v. Kansas City Southern Ry. Co. 602 P.2d 203, 206-07 (Okla. 1979). “The doctrine is essentially a matter of intention, focusing on the intent of the party against whom waiver is asserted.” Id. Waiver can be accomplished either expressly or implicitly, but an implied waiver requires “a clear, unequivocal and decisive manifestation of the party’s relinquishment of the right.” Id. “No one can be bound by a waiver of one’s rights unless it was made with full knowledge of the rights intended to be waived.” Faulkenberry, 602 P.2d at 207.
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Paragraphs 1.2 and 1.3 do not expressly waive plaintiffs’ right to seek recovery of attorney fees under 42 U.S.C. § 1988 for non-listed attorneys. As the Magistrate Judge correctly noted, Paragraphs 1.2 and 1.3 neither mention § 1988, nor waive the right to seek statutory fees for non-listed attorneys. In Paragraph 1.3, the “Settling Defendant,” the Oklahoma Commission for Human Services, stipulates that Class Counsel are entitled to fees and expenses; the language of the paragraph in no way limits plaintiffs’ right to seek fees under § 1988 for non-listed attorneys.
Nor, in this court’s view, can Paragraphs 1.2 and 1.3 be fairly read to constitute an implied waiver. The language in the paragraphs simply falls short of “a clear, unequivocal and decisive manifestation of [plaintiffs’] relinquishment of the right” [to seek fees under § 1988 for non-listed attorneys]. Barringer, 22 P.3d at 701.
The court concludes that plaintiffs did not waive their right to seek attorney fees under 42 U.S.C. § 1988 for attorneys not listed as “Class Counsel” in Paragraph 1.2 of the Settlement Agreement.
B. Reduction for Communications with Steven Dow and DHS Personnel Defendants seek a significant reduction in the fee award due to plaintiffs’ counsels’ unauthorized contact with represented defendants. Specifically, they contend plaintiffs’ counsel violated Oklahoma Rule of Professional Conduct 4.2 by communicating with DHS Commissioner Steven Dow and DHS personnel without the consent of DHS counsel or a court order authorizing such communication. Time records produced by attorneys for Children’s Rights contained numerous entries concerning communications between plaintiffs’ attorneys and confidential sources or informants.
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In connection with the attorney fee motion, defendants sought to compel production of documents disclosing the identities of the confidential sources. [Dkt. #804]. The Magistrate Judge conducted an in camera review of the list of confidential sources before ruling on the motion to compel. [Dkt. #812].
In his Report and Recommendation on the attorney fee motion, the Magistrate Judge observed that Dow was not on the list of names of “confidential sources” and “with the exception of one individual identified as a supervisor, the sources were case workers or other front line employees.” [Dkt. #846 at 6]. Further, with respect to communications by Dorwart and/or Lowry with Dow, the court found “the evidence did not establish that there were any unauthorized discussions between Plaintiffs’ attorneys and Mr. Dow regarding this litigation” and “[t]here is, therefore, no basis for a reduction the fee award for unethical conduct with respect to Mr. Dow, or otherwise.” [Id.].
With respect to communications with confidential sources, defendants assert the Magistrate Judge’s review of plaintiffs’ in camera submission was “insufficient to fully address the Rule 4.2 Issue,” and speculate plaintiffs did not submit all information the Magistrate Judge ordered them to produce for in camera review. [Dkt. #850 at 22]. They state, “In other words, the R&R reflects that Plaintiffs’ counsel has not submitted descriptions of Plaintiffs’ counsel’s contact with Mr. Dow or with any other DHS-affiliated individual, unless that individual also happened to be named as a ‘source’ by Children’s Rights on a time record filed with the Court.” [Id. at 23].
The court declines to second guess the adequacy of the list submitted to the Magistrate Judge for in camera review. The Magistrate Judge reviewed the list in connection with the motion to compel. He determined none of the people identified on the list were of a level to raise
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Rule 4.2 issues. Plaintiffs turned over the time records indicating Dorwart’s contacts with Dow, and both Dorwart and Lowry testified about the nature and extent of their communications with Dow.
Dow was appointed as a member of the Human Services Commission on November 25, 2009. [Dkt. #850, Ex. 5]. Pursuant to Fed. R. Civ. P. 25(d), he was automatically substituted as a party in this lawsuit. Time records from the Dorwart firm confirm telephone calls between Dorwart and Dow on December 16, 2009, and March 2, 2010. [Dkt. #850, Ex. 7]. Additionally, a March 8, 2010, entry stated, in pertinent part, “work on care package to Mr. Dow.” [Id.]. The time records indicate that subsequently, on November 19-21, 2010, numerous emails and telephone calls occurred among Dorwart, Dow and Don Bingham, counsel for defendants. [Id.].4
Dorwart testified at the hearing that he and Dow are friends and otherwise professionally associated and speak frequently. [Dkt. #843, TR at 80:24-25]. He testified that in the December 16, 2009, Dow told him he had long expressed a desire to go on the commission and that DHS Director Howard Hendrick opposed Dow coming on the commission. [Id., TR at 81:4-23]. The March 8, 2010 care package for Dow, according to Dorwart, included a number of the filed pleadings in this case and a copy of the consent decree entered of record in the Tennessee case. [Id., TR at 85:3-11]. Dorwart testified he had talked to Dow sometime before and Dow expressed his desire to see the pleadings in the case so that when he went on the commission he would know what was going on. [Id., TR at 85:12-17]. Dorwart testified that to his knowledge, Dow was not serving as a commissioner at the time he sent him the care package. [Id., TR at
4 The entry for 12/16/09 states, in pertinent part: “Teleconference with Steven Dow regarding appointment to DHS Commission.” [Dkt. #850, Ex. 7 at pp. 32-33]. The entry for 3/2/10 states, in pertinent part: “teleconference with Steven Dow.” [Id. at 34]. An entry on 11/19/10 states “Multiple emails to Messrs. Dow and Bingham [DHS counsel] concerning scheduling settlement discussion.” [Id. at 36] The entry for 11/20/10 states “Teleconference with and emails x3 to Mr. Dow concerning settlement discussions.” [Id.]. The entry for 11/21/10 states “Teleconference with Mr. Dow and emails x4 to Messrs. Dow and Bingham concerning settlement.” [Id.]
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86:12-14].5 In any event, Dorwart’s testimony that he had no substantive discussions with Dow regarding this lawsuit is uncontroverted.
Lowry testified she had no substantive communications with Dow. [Id., TR at 209:1925]. Neither Dorwart nor anyone else communicated to her any discussions they had with Dow. [Id., TR at 210:1-6].
After consideration of the arguments of counsel, together with the testimony and evidence presented, this court concludes that any attorney fee award need not be reduced based on counsels’ contact with Mr. Dow and DHS personnel.
C. Lodestar Reduction In the hearing before the Magistrate Judge, defendants argued for a 30 to 50 percent reduction in plaintiffs’ requested fees, and experts for both sides agreed some reduction is appropriate. Defendants’ expert recommended a reduction of 30 percent. [Dkt. #844, TR at 422:19-20]. Plaintiffs’ expert testified that if he were in the shoes of the court, he would reduce the Children’s Rights attorney fees by 7.5 percent “because of potential duplication of effort or items that were excessive.” [Dkt. #844, TR at 288:1-25]. The Magistrate Judge recognized serious issues with plaintiffs’ descriptions of tasks in billing entries, duplication of effort, and a lack of billing judgment. In particular, he noted that— according to defendants—the Children’s Rights attorneys, in more than 840 time entries representing $198,414.75 in fees, allocated time to communications with unidentified “sources,” and he concluded the entries were too vague to evaluate whether the time spent was reasonable.
5 However, Dow had been appointed November 5, 2009, and attended a commission meeting on February 23, 2010. [Dkt. #850, Ex. 6, Minutes of February 23, 2010 Executive Session of the Oklahoma Commission for Human Service meeting].
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[Dkt. #846 at 13]. Further, he observed that defendants had identified over 1,900 billing entries for attorney Kapell that contain the description “electronic mail” and little other detail about the substance of the work performed, and $36,066.34 in attorney time which defendants argued is not recoverable as it was devoted to non-substantive tasks such as organizing and training attorneys. [Id.]. The Magistrate Judge adopted and recommended plaintiffs’ experts’ suggestion—a reduction of 7.5 percent. [Dkt. #846 at 15].
Defendants argue the recommended 7.5 percent reduction is “meager” and “considerably below the range of reductions” in other cases. [Dkt. #850 at 9, 11]. They contend the plaintiffs’ attorneys’ lodestar should be reduced by at least 25 percent. [Id. at 10].6 Defendants also contend the requested fees should be reduced because plaintiffs ultimately prevailed on only one of their five claims.
Although the court may reduce a lodestar calculation on the grounds that plaintiffs have achieved only partial success, many civil rights cases involve multiple claims “based on a common core of facts . . . or related legal theories.” Robinson v. City of Edmond, 160 F.3d 1275, 1283 (10th Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). The Tenth Circuit has held “that when a plaintiff achieves the principal goal of her lawsuit, lack of success on some of her interrelated claims may not be used as a basis for reducing the plaintiff’s fee award.” Robinson, 160 F.3d at 1283.
The court concurs with the Magistrate Judge’s conclusion that the facts supporting the successful claim were intertwined with the unsuccessful ones. Therefore, it rejects defendants’ argument that a reduction for plaintiffs’ unsuccessful claims is appropriate.
6 Further, defendants correctly assert there is an arithmetic error in the calculation of the reduction at pages 16-17 of the Report and Recommendation, and that a 7.5 percent reduction in the subtotal figure of $6,017,215 amounts to a reduction of $451,291 (rounded to the nearest dollar) instead of $421,205, as stated on pages 17-18 of the Report and Recommendation.
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This court also concurs with the Magistrate Judge that a reduction in the overall fee award is justified by the lack of billing judgment found in the fee request. Plaintiffs bear the burden to prove the reasonableness of “each dollar, each hour, above zero” in their fee request. Mars v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986). Their fee application contains numerous deficiencies which undermine their request. After an independent review of the billing statements, the exhibits, and the testimony presented, this court concludes that a 20 percent reduction of the base fee of $6,017,215 is reasonable and appropriate.7 This percentage was determined by considering (1) the lack of billing judgment referenced by the Magistrate Judge, including billing entries that do not detail the work performed, and attorney time devoted to organizing and training attorneys; (2) the excessive fees Children’s Rights sought for class certification, insofar as the class was provisionally certified without much difficulty, and considering the significant pro bono assistance plaintiffs received on the issue from Kaye Scholar;8 (3) the inefficiencies incumbent with high turnover rates of attorneys and staff at Children’s Rights;9 (4) the absence of monthly or periodic billing reviews at Children’s Rights, resulting in vague, insufficiently detailed, and excessive billing; (5) duplicative billing entries by multiple attorneys for the same task; and (6) plaintiffs’ failure to provide documentation or description of the 3,634 hours they wrote off, making it difficult to evaluate the adequacy of their exercise of billing judgment. As a result, the plaintiffs are awarded a reasonable attorney fee in the amount of $4,813,772. Similarly, the court concludes total fees for paralegal/intern
7 This reduction is consistent with the lodestar reduction in Kenny A. v. Perdue, 454 F. Supp.2d 1260, 1286 (N.D. Ga. 2006) (ordering 15% reduction in number of non-travel related hours claimed by plaintiffs’ counsel). 8 The Kaye Scholer firm reported $236,000 in billable time on the class certification issue. [Dkt. #844, TR at 426:14-2]. 9 Defendants’ expert James Sturdivant, testified, based on his review of plaintiffs’ records that only two Children’s Rights attorneys were at the firm for the entirety of the lawsuit; six came after the case was filed and remained to the end; and 37 other timekeepers came and went during the pendency of the case. [Dkt. #844, TR at 424:14-22].
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time should be reduced by 20 percent. The requested fee of $618,660 is therefore reduced to an award of $494,928 for paralegal and intern time.
D. Expenses for Kaye Scholar’s Litigation Support and for “Temp Attorneys” While only those items listed under 28 U.S.C. § 1920 may be awarded as costs, other outof-pocket expenses incurred during litigation may be awarded as attorney fees under 42 U.S.C. § 1988 if (1) the expenses are not absorbed as part of the law firm overhead but are normally billed to a private client, and (2) the expenses are reasonable. Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995).
1. Data Storage Costs Plaintiffs sought reimbursement of a total of $262,120 for out-of-pocket expenses of the Kaye Scholer law firm. Phillip Geraci, the Kaye Scholer partner who supervised the firm’s work on this case, declared that the firm incurred the expenses in connection with this action. [Dkt. #792, Phillip A. Geraci Dec., ¶ 4]. Included in the out-of-pocket expenses was $191,176.95 for “litigation support.” Geraci, in his declaration, stated: The largest catego ry of reimbursable expenses incurred by Kaye Scholer in connection with this litigation was for litigation support, which consisted of payments to Plaintiffs’ vendor for comput erized data loading, storing and hosting charges with respect to the m illions of pages of records obtained by Plaintiffs during the discovery phase of the case. [Id., Geraci Dec., ¶ 7]. Exhibit B to the Geraci Declaration is an itemized list of individual expenses. It includes eight pages listing payments to three vendors, Iris Data Services, LLC, Everest Technologies Co., LLC, and TechLaw Solutions, Inc. for “Litigation Support.” At the hearing on plaintiffs’ fee motion, attorney Lowry testified the Kaye Scholar firm provided litigation support, “which was…a hosting system for the data and for the electronic
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data that we had collected. And they maintained that, and we loaded our data onto that hosting
system.” [Dkt. #843, TR at 163:18-22]. Further, she stated:
But I do know personally that the data th at we were collecting through electronic discovery was going up on a system, a computer system that Kaye Scholer was paying for. And that was obviously an essential part of the case, to be able to handle the electronic discovery.
[Id., TR at 168:5-11].
The Magistrate Judge concluded that, considering the volume of the data production in
this case, some expense was necessarily incurred to manage data [Dkt. #846 at 23]. However, he
stated:
[S]ince Plaintiffs made no at tempt to demonstrate the reasonableness of the expense, the undersigned finds that some reduction of that large expense item is in order. The lack of a basis for determ ining whether the am ount of the expense is reasonable or unreasonable is entirely due to Plaintiffs’ failure to m eaningfully address Defendants’ objection to the expense. The recommended reduction in the “litigation services” expense is admittedly somewhat arbitrary, but that too is the result of Plaintiffs’ failure to demonstrate the reasonableness of the expense.
[Dkt. # 846 at 23-24].
The Magistrate Judge noted that a charge for “data storage and hosting” for July 2009 in
the amount of $2,422 appears to have been charged twice. [Id. at 23]. Additionally, some of the
entries are vaguely described as being “for services rendered.” [Doc. 792-2, Ex. B at pp. 30-31],
and throughout the entries, there are numerous instances of what appear to be double posting of
charges and subsequent removal of charges. The Magistrate Judge did not recommend a
reduction for the “services rendered” billings, which he concluded appeared to be data storage
and hosting charges. [Dkt. #846 at 23]. However, he recommended a reduction of $2,442 for
duplication of the July 2009 hosting fee. [Id. at 24]. Further, because plaintiffs made no effort to
demonstrate the reasonableness of the overall expense for “litigation support,” the Magistrate
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Judge recommended a 25 percent reduction, or $47,183.74, for a total reduction in this category of expense of $49,625.74. [Id.].
In their objection, defendants argue the $191,176.95 for “litigation support” should be denied in its entirety because “[p]laintiffs have not sufficiently linked a payment from Defendants of nearly $200,000 to why or how this expense was necessary to Plaintiffs’ case.” [Dtk. #850 at 30].
The court rejects defendants’ argument. As the Magistrate Judge observed, cases involving voluminous electronic document production necessarily generate such costs. Plaintiffs have sufficiently established the costs were out-of-pocket expenses paid by Kaye Scholer to vendors for electronic document hosting and management. The Magistrate Judge’s proposed 25 percent reduction adequately accounts for the deficiencies in documentation of the costs.
2. Temporary Attorneys Plaintiffs sought recovery of out-of-pocket expenses totaling $209,959.75 (representing over 3,800 hours) for temporary attorneys over a term of 20 weeks to assist in the review of nearly one million emails produced by defendants. [Dkt. #791, Marcia Lowry Declaration, ¶ 17; Dkt. #791-4 at 2, Ex. D, p. 1]. Lowry testified the emails were produced late in the case, and given the size and timing of the production, plaintiffs had no choice but to hire temporary attorneys in order to complete the review of the emails in time to use them for depositions and other discovery. [Dkt. #843, TR at 172:18-173:3]. Plaintiffs billed the attorneys at the actual cost from the agency--$55 per hour. [Id., TR at 173:3-6]. Lowry testified that if CR attorneys had reviewed the emails, their rates would have been “well above” the $55 per hour rate charged by the agency. [Id., TR at 173:114-20].
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The Magistrate Judge agreed the use of temporary attorneys was a cost savings over the requested hourly rates for attorneys and paralegals. However, because no time entries for the temporary attorneys’ work were submitted, he concluded “there is no way for the court to determine whether the time was reasonable for the tasks, or even what tasks were performed.” [Dkt. #846 at 25]. He recommended that the expense for temporary attorneys be reduced by 25 percent ($52,490).
Defendants argue that the temporary attorney costs should be entirely disallowed because attorney fees are not an “expense” under § 1988, no matter which attorneys are performing the work. Further, they assert plaintiffs’ documentation fails to establish the charges were reasonable. This court agrees. Rather than properly documenting and describing the time expended by these temporary attorneys, Children’s Rights improperly seeks reimbursement for the attorneys’ time as an “expense.” Moreover, as the Magistrate Judge recognized, the 3,800 attorney hours allegedly spent by the temporary attorneys represents “an enormous expenditure of time for which there is no description of the work performed.” Therefore, the court concludes the claim for attorney fees characterized as “expenses” must be disallowed.
VI. Conclusion For the foregoing reasons, the Magistrate Judge’s Report and Recommendation [Dkt. #846] is accepted in part and rejected in part, as set forth above. Plaintiffs’ Motion for Award of Class Counsel Fees and Expenses [Dkt. #790] is granted. Plaintiffs are awarded attorney fees and expenses in the total amount of $6,011,888.80, broken down as follows:
 attorney fees in the amount of $4,813,772;  travel time of $139,500;
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 paralegal and intern time of $494,928; and  reimbursable expenses of $563,688.80. IT IS SO ORDERED this 31st day of March, 2013.
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 Co-Neutral Tenth Commentary
Issued August 2018
KDK
Compromise and Settlement Agreement
(D.G. vs. Yarborough, Case No. 08-CV-074)

Table of Contents
I. Introduction ............................................................................................................................. 5 III. Context Data of Children in DHS Custody ............................................................................. 16 A. Foster Care............................................................................................................................. 19 B. Therapeutic Foster Care ........................................................................................................ 29 C. Caseworker Caseloads and Supervisor Workloads ............................................................... 40 D. Shelter Use............................................................................................................................. 50 E. Child Maltreatment in Care ................................................................................................... 63 F. Caseworker Visitation............................................................................................................ 96 G. Placement Stability .............................................................................................................. 100 H. Permanency ......................................................................................................................... 112
Figures
Figure 1: Number of Children in DHS Custody at the End of SFY - 2004 to 2018......................... 16 Figure 2: Children in Care on December 31, 2017 by Age Group................................................. 17 Figure 3: Children in Care on December 31, 2017 by Length of Stay ........................................... 18 Figure 4: Children in Care on December 31, 2017 by Placement Type ........................................ 19 Figure 5: New Foster Care Homes Developed by Month, July 2017-December 2017 ................. 20 Figure 6: New Foster Homes Developed by Agency, July 2017-December 2017......................... 21 Figure 7: New Foster Homes by Type, July 2017-December 2017 .............................................. 22 Figure 8: Traditional Home Closure Reasons, July - December 2017 ........................................... 26 Figure 9: New Therapeutic Foster Homes by Month, July 2017-December 2017 ....................... 30 Figure 10: Worker Caseloads: Percent of Workers Meeting Caseload Standards ....................... 42 Figure 11: Investigative Cases, June 28, 2017 to December 31, 2017 ......................................... 43 Figure 12: District Capacity to Cover Workload and Caseload Compliance ................................. 48 Figure 13: Supervisor Workloads: Percent of Supervisors Meeting Workload Standards ........... 50 Figure 14: Metrics 5.1 – Shelter-Nights, Children Ages 0 – 1 ....................................................... 53 Figure 15: Metric 5.2 – Shelter-Nights, Children Ages 2 – 5......................................................... 54 Figure 16: Metric 5.3 – Shelter-Nights, Children Ages 6 – 12....................................................... 55 Figure 17: Metric 5.4 – Shelter Nights, Children Ages 13 and Older ............................................ 56 Figure 18: Pinnacle Plan 1.17 Performance .................................................................................. 57 Figure 19: Number of Unique Children Six Years and Older, July 2016 to January 2018 ............. 58 Figure 20: Metric 1a – Absence of Maltreatment in Care by Resource Caregivers ..................... 66
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Figure 21: Metric 1b – Absence of Maltreatment in Care by Parents.......................................... 67 Figure 22: Metric 3.1 – Frequency of Visits by All Workers.......................................................... 97 Figure 23: Metric 3.2 – Frequency of Primary Worker Visits ....................................................... 98 Figure 24: Metric 3.3b – Continuity of Primary Worker Visits Over Six Months .......................... 99 Figure 25: Metric 6.2a – Permanency within 12 Months of Removal ........................................ 115 Figure 26: Metric 6.2b – Permanency within 2 years of Removal.............................................. 119 Figure 27: Metric 6.2c – Permanency within 3 years of Removal .............................................. 120 Figure 28: Metric 6.2d – Permanency within 4 years of Removal.............................................. 121 Figure 29: Metric 6.3 – Re-entry within 12 Months of Exit ........................................................ 122 Figure 30: Metric 6.5 – Permanency Performance..................................................................... 123 Figure 31: Metric 6.6 – Permanency Performance..................................................................... 126 Figure 32: Metric 6.7 – Permanency Performance..................................................................... 127 Figure 33: Metric 6.4 – Permanency Performance..................................................................... 131
Tables
Table 1: Summary of Target Outcomes .......................................................................................... 8 Table 2: Pinnacle Plan Caseload and Workload Standard Commitments .................................... 40 Table 3: Caseload Compliance Classification by Worker Type .................................................... 43 Table 4: Child-Nights in Shelters by Age, January 2017 to December 2017................................. 57 Table 5: Unique Children by Shelter, July 1, 2017 to December 31, 2017 ................................... 62 Table 6: Rate of MIC by Placement Type, Current and Prior Report Periods............................... 68 Table 7: Institutions with More Than One Substantiation, October 2016 to September 2017 ... 80 Table 8: Placement Stability Baselines, Targets, and Current Performance .............................. 101 Table 9: Percent of Children Whose First Countable Placement is a Kinship Home .................. 103 Table 10: First Placement Exit Reasons, December 2017........................................................... 107 Table 11: Measure 4.1 C, Number of Children Eligible, Performance, and Total Cohort........... 112 Table 12: Total Number of Children Removed During the SFY14-18 ......................................... 117 Table 13: Number of Children who became Legally Free under Metric 6.5 .............................. 124 Table 14: Metric 6.1 – Permanency Performance ...................................................................... 128
Appendices
Appendix A: Metric Plan Baselines and Targets (Updated September 2015) ............................ 132 Appendix B: Suggested Foster Parent Training Opportunities ................................................... 141 Appendix C: Workload Improvement Plan ................................................................................. 142 Appendix D: Statewide Workload and Hiring Plan ..................................................................... 145
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Appendix E: Quality Worker Visits - Guidance and Tools ........................................................... 148 Appendix F: U.S. District Court Order re: Laura Dester Children’s Shelter................................. 158 Appendix G: Placement Stability Communication...................................................................... 162 Appendix H: Memorandum from child welfare director regarding Permanency Plan Selection
............................................................................................................................................. 163 Glossary Glossary 1: Acronyms.................................................................................................................. 165
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I. Introduction
This is the 10th Commentary issued by the Co-Neutrals to review progress made by the Oklahoma Department of Human Services (“DHS”) to improve its child welfare system. Under the Compromise and Settlement Agreement (CSA), DHS originally planned to exit the agreement in December 2016, but was unable to do so. Over the course of the reform, important advancements have been made by DHS, but they are not yet fully rooted, particularly with respect to manageable caseloads and an adequate array of placements for children. In some areas, most critically safety for children in the care and custody of DHS, the department’s efforts have been inadequate. In order to improve performance for children toward the Target Outcomes identified at the outset of this reform effort, DHS must make good faith efforts to achieve substantial and sustained progress in each of the measured areas described in this Commentary.
Background On January 4, 2012, DHS and Plaintiffs reached agreement in a long-standing federal class action lawsuit against the state of Oklahoma on behalf of children in the custody of DHS due to abuse and neglect by a parent or resource caregiver. That matter, D.G. vs. Yarborough, Case No. 08-CV-074, resulted in the Compromise and Settlement Agreement (CSA), which was approved by the United States District Court for the Northern District of Oklahoma on February 29, 2012. The CSA requires (Section 2.10 (a)) that DHS develop a plan setting forth “specific strategies to improve the child welfare system.” Under the CSA, the parties identified and the court approved Eileen Crummy, Kathleen Noonan, and Kevin Ryan as “Co-Neutrals,” and charged them to evaluate and render judgment about the ongoing performance of DHS to strengthen its child welfare system to better meet the needs of vulnerable children, youth, and families. The CSA states specifically (Section 2.10 (i)) that, “Twice annually, the Co-Neutrals shall provide commentary regarding the Department’s overall progress as reflected by the [data] reports and shall provide commentary as to whether the Department is making good faith efforts pursuant to Section 2.15 of the Settlement Agreement.”
DHS, with the assistance of state leaders, advocates, and other stakeholders, developed the Pinnacle Plan, which contains significant commitments to be implemented beginning in State Fiscal Year (SFY) 2013. The Co-Neutrals approved the Pinnacle Plan on July 25, 2012.
The CSA charged DHS with identifying baselines and Target Outcomes to measure and report the state’s progress in core performance areas, which are grouped in the following seven performance categories:
x Maltreatment (abuse and neglect) of children in the state’s legal custody (MIC); x Development of foster homes and therapeutic foster homes (TFC);
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x Regular and consistent visitation of caseworkers with children in the state’s legal custody;
x Reduction in the number of children in shelters; x Placement stability, reducing the number of moves a child experiences while in the
state’s legal custody; x Child permanency, through reunification, adoption or guardianship; and, x Manageable caseloads for child welfare staff.
As required by the CSA, the Co-Neutrals and DHS established the Metrics, Baselines, and Targets Plan (the “Metrics Plan”) on March 7, 2013. For each of the seven performance categories, the Metrics Plan establishes: the methodology for the performance metrics and measuring progress; parameters for setting baselines; interim and final performance targets and outcomes; and the frequency by which DHS must report data and information to the CoNeutrals and the public. Appendix A provides a summary chart of the metrics for the seven performance areas, with corresponding baselines and targets, established by DHS and the CoNeutrals, and updated through September 2015.1
The CSA further requires the Co-Neutrals to provide commentary and issue a determination as to whether DHS’ data submissions provide sufficient information to measure accurately the department’s progress. The Co-Neutrals have previously found data sufficiency for all the CSA performance areas and data metrics. Pursuant to the CSA, the Co-Neutrals may revise any determination of data sufficiency based on subsequent or ongoing data submissions as deemed appropriate. It is important to highlight that DHS’ data management team has made significant progress during this reform, particularly in strengthening its ability and practice to manage and evaluate its data to support data-driven management decisions and case practice improvements.
Under Section 2.15 of the CSA, the parties established that the Co-Neutrals would issue a Final Report on December 15, 2016 that determines whether DHS has made, for a continuous period of at least two years prior to December 15, 2016, good faith efforts to achieve substantial and sustained progress towards the Target Outcomes. On September 2, 2016, DHS and the Plaintiffs jointly agreed by amendment to the CSA to suspend the Co-Neutrals’ issuance of the Final Report. The amendment gives DHS the opportunity to request the Final Report from the Co-Neutrals at any time and maintains the requirement that the Co-Neutrals determine as part
1 Under Section 2.10(f) of the CSA, the Co-Neutrals shall issue Baseline and Target Outcomes, which shall not be subject to further review by either party but may at the discretion of the Co-Neutrals, after providing the parties an opportunity to comment, be revised by the Co-Neutrals.
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of that report whether DHS has, for a period of at least two years, made good faith efforts to achieve substantial and sustained progress toward each Target Outcome.
This document serves as the Co-Neutrals’ Tenth Commentary under the CSA and reflects DHS’ performance, data, and information available through December 31, 2017. In numerous instances, as described in this report, data and information are only available through September 30, 2017 (due to reporting lags or intervals agreed upon previously by the CoNeutrals and DHS). In addition, in some instances, the Co-Neutrals report on more recent decisions or activities by DHS to reflect, when possible, the most current view of the reform. Good Faith Efforts to Achieve Substantial and Sustained Progress
The CSA requires the Co-Neutrals to determine whether DHS has “made good faith efforts to achieve substantial and sustained progress” toward a Target Outcome. This standard requires more than an assessment of DHS’ intentions but necessarily requires a conclusion by the CoNeutrals that is based on an analysis of the activities undertaken and decisions made by DHS or, as the Co-Neutrals have stated, the inactions or failures to make decisions, and the impact of those decisions and activities on achieving substantial and sustained progress toward a Target Outcome. For example, the Co-Neutrals have focused their review and assessment of DHS’ timeliness and thoroughness to implement, evaluate and, when needed, adjust core strategies to inform their judgment of whether the department has made good faith efforts to achieve substantial and sustained progress toward the Target Outcomes.
The CSA requires the Co-Neutrals to report on those Target Outcomes that DHS has met, those for which the department has achieved sustained, positive trending toward the Target Outcomes, and those Target Outcomes for which DHS has not achieved sustained, positive trending. The following Table summarizes the Co-Neutrals’ findings of DHS’ progress toward the Target Outcomes and, separately, the Co-Neutrals’ assessment of DHS’ efforts for each of the performance metrics assessed during this report period.
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Table 1: Summary of Target Outcomes

Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

1.A: Of all children in foster

No

No

No

care during the reporting

period, what percent were not

victims of substantiated or

indicated maltreatment by a

foster parent or facility staff

member in a 12 month period.

1.B: Of all children in legal

No

No

No

custody of DHS during the

reporting period, what number

and percent were not victims

of substantiated or indicated

maltreatment by a parent and

what number were victims.

2.A: Number of new foster

Target due June No

Yes

homes (non-therapeutic, non- 30, 2018

kinship) approved for the

reporting period.

Net gain/loss in foster homes Target due June No

No

(non-therapeutic, non-kinship) 30, 2018

for the reporting period.

2.B: Number of new

Target due June No

No

therapeutic foster homes (TFC) 30, 2018

reported by DHS as approved

for the reporting period.

8

Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

Net gain/loss in TFC homes for Target due June No

No

the reporting period.

30, 2018

3.1: The percentage of the

Yes

Yes

Yes

total minimum number of

required monthly face-to-face

contacts that took place during

the reporting period between

caseworkers and children in

foster care for at least one

calendar month during the

reporting period.

3.2: The percentage of the

Yes

Yes

Yes

total minimum number of

required monthly face-to-face

contacts that took place during

the reporting period between

primary caseworkers and

children in foster care for at

least one calendar month

during the reporting period.

9

Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

3.3b: The percentage of

No

Yes

Yes

children in care for at least six

consecutive months during the

reporting period who were

visited by the same primary

caseworker in each of the most

recent six months, or for those

children discharged from DHS

legal custody during the

reporting period, the six

months prior to discharge.

4.1a: Percent of children in

No

Yes

Yes

legal custody of DHS that

experience two or fewer

placement settings: Of all

children served in foster care

during the year who were in

care for at least 8 days but less

than 12 months, the

percentage that had two or

fewer placement settings.

10

Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

4.1b: Percent of children in No

Yes

Yes

legal custody of DHS that

experience two or fewer

placement settings: Of all

children served in foster care

during the year who were in

care for at least 12 months but

less than 24 months, the

percentage that had two or

fewer placements.

4.1c: Percent of children in

No

No

Yes

legal custody of DHS that

experience two or fewer

placement settings: Of all

children served in foster care

during the year who were in

care for at least 24 months, the

percentage that had two or

fewer placement settings.

4.2: Of those children served in No

No

Yes

foster care for more than 12

months, the percent of

children who experienced two

or fewer placement settings

after their first 12 months in

care.

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Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

5.1: The number of child-nights Yes

Yes

Yes

during the past six months

involving children under age 2

years.

5.2: The number of child-nights No

No

Yes

during the past six months

involving children age 2 years

to 5 years.

5.3: The number of child-nights No

No

No

during the past six months

involving children age 6 years

to 12 years.

5.4: The number of child-nights No during the past six months involving children ages 13 years or older.
1.17: Percent of children 13 No and older in a shelter who stayed less than 30 days and no more than one time in a 12month period.
6.1: Of all children who were No legally free but not living in an adoptive placement as of January 10, 2014, the number of children who have achieved permanency.

No

No

No

No

Yes – for children ages 12 and under

Yes – for children ages 12 and under

Yes – for children ages 13 and older

Yes – for children ages 13 and older

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Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

6.2a: The number and percent No

No

No

of children who entered foster

care 12-18 months prior to the

end of the reporting period

who reach permanency within

one year of removal, by type of

permanency.

6.2b: The number and percent No

Yes

Yes

of children who entered their 12th month in foster care

between 12-18 months prior to

the end of the reporting period

who reach permanency within

two years of removal, by type

of permanency.

6.2c: The number and percent No

Yes

Yes

of children who entered their 24th month in foster care

between 12-18 months prior to

end of reporting period who

reach permanency within three

years of removal, by type of

permanency.

6.2d: The number and percent No

Yes

Yes

of children who entered their 36th month in foster care

between 12-18 months, prior

to the end of the reporting

period who reach permanency

within four years of removal.

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Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

6.3: Of all children discharged Yes

Yes

Yes

from foster care in the 12

month period prior to the

reporting period, the

percentage of children who re-

enter foster care during the 12

months following discharge.

6.4: Among legally free foster No

Yes

Yes

youth who turned 16 in the

period 24 to 36 months prior

to the report date, the percent

that exited to permanency by

age 18; stayed in foster care

after age 18, and exited

without permanency by age

18.

6.5: Of all children who

No

Yes

Yes

became legally free for

adoption in the 12 month

period prior to the year of the

reporting period, the

percentage who were

discharged from foster care to

a finalized adoption in less

than 12 months from the date

of becoming legally free.

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Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward the
Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

6.6: The percent of adoptions No

No

Yes

that did not disrupt over a 12

month period, of all trial

adoptive placements during

the previous 12 month period.

6.7: The percent of children Yes

Yes

Yes

whose adoption was finalized

over a 24 month period who

did not experience dissolution

within 24 months of

finalization.

Caseworkers

No

No

Yes

Supervisors

No

Yes

Yes

For this period, the Co-Neutrals conclude that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcomes in 22 of the 31 distinct performance areas. In nine performance areas, the Co-Neutrals find that DHS did not make good faith efforts to achieve substantial and sustained progress toward the Target Outcomes for this report period.
Methodology
The Co-Neutrals conducted a series of verification activities to evaluate DHS’ progress and implementation of its commitments. These activities included meetings with DHS leadership and scores of staff across the state, private agency leadership, and child welfare stakeholders. The Co-Neutrals also reviewed and analyzed a wide range of aggregate and detailed data produced by DHS, and thousands of child and foster home records, policies, memos, and other internal information relevant to DHS’ work during the period.

15

The remainder of this report includes:
 Context Data of Children in DHS Custody (Section III);  Seven Performance Categories: Assessment of Progress and Good Faith Efforts (Section
IV);  Appendices; and,  Glossary of Acronyms.

III. Context Data of Children in DHS Custody
DHS has experienced a steady decline in the number of children in care over the last three years. At its highest number of children in care since 2007, there were 11,301 children in DHS custody on June 30, 2014. Four years later, on June 30, 2018, there were 8,455 children in care, a 25 percent drop. The decline in the population of children in care is the result of more children exiting care than entering care each year.

Figure 1: Number of Children in DHS Custody at the End of SFY - 2004 to 2018

14,000

12,000 10,000
8,000

11,403 11,698

10,819

10,758

10,101

11,301 10,917

9,980

9,964

9,099

8,843

7,615 7,911

9,001 8,455

6,000

4,000

2,000

0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
Source: DHS Data

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Demographics
DHS data show that there were 8,677 children in custody on December 31, 2017, while there were 8,997 children in custody on July 1, 2017.2 During the reporting period from July 1, 2017 to December 31, 2017, 2,328 children entered care and 2,648 children exited care.
Young children aged zero to five years make up the largest portion (4,523 or 52 percent) of children in care. Children aged 6 to 12 years comprise 34 percent (2,911) of the population in care and fourteen percent (1,243) are 13 years or older, as detailed in the following chart:
Figure 2: Children in Care on December 31, 2017 by Age Group (Total = 8,677)

13 or older 1,243 14%

0 to 1 1,891 22%

6 to 12 2,911 34%

2 to 5 2,632 30%

Source: DHS Data

With regard to gender, the population is split almost equally — 52 percent male and 48 percent female. With regard to race, the population of children is 37 percent White, nine percent African-American, and seven percent Native American. In addition, 19 percent of children identified with Hispanic ethnicity (and can be of any race). Twenty-eight percent identified with multiple race and ethnicity categories, of which 72 percent identified as Native American.3
As presented in Figure 3 below, DHS’ data shows that of the children in care on December 31, 2017, 48 percent (4,187) were in care for less than one year; 29 percent (2,516) between one

2 In the prior commentary, DHS reported 9,001 children in care on June 30, 2017. Due to data entry lag and merged identifying numbers, OKDHS data now indicate 8,997 children in care on July 1, 2017. These types of adjustments are common in child welfare administrative data. 3 Overall, 33 percent of children identified as Native American including those children who identified with more than one race and ethnicity category and those who identified as Hispanic.
17

and two years; 11 percent (979) between two and three years; 9 percent (785) between three and six years; and 2 percent (210) for more than six years.
Figure 3: Children in Care on December 31, 2017 by Length of Stay (Total = 8,677)

6+ years 210 2%

3 to 6 years 785 9%

2 to 3 years 979 11%

Less than 1 year 4,187 48%
1 to 2 years 2,516 29%

Source: DHS Data

As the following chart demonstrates, 93 percent of children (8,034) in DHS custody on December 31, 2017 live in family settings, including in relative and non-relative kinship homes (40 percent), with foster families (39 percent), with their own parents (ten percent), and in homes that intend to adopt (three percent). Of children in custody, 481 (six percent) live in institutional settings, including shelters, residential treatment and other congregate care facilities. The remaining two percent reside in unidentified placements (listed as “other” in the table below) or are AWOL (listed as “runaway” in the Table below).4

4 Percentages in this paragraph may not add up to totals due to rounding.
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Figure 4 : Children in Care on December 31, 2017 by Placement Type

4000
3,503 3,415
3500

3000

2500

2000

1500

1000

880

500

283

236

198

93

69

0

Kinship Home Foster Family Home
Trial Home Visit Group Home
Pre-Adoptive Home Institution Other Runaway

Source: DHS Data
Of the 8,034 children living in family settings, 1,868 (23 percent) are less than two years old, 2,607 (32 percent) are two to five years old, 2,731 (34 percent) are six to 12 years old, and 828 (10 percent) are 13 years or older. Of the 481 children living in institutional settings, seven (two percent) are less than two years old, six (one percent) are 2 to 5 years old, 149 (31 percent) are 6 to 12 years old, and 319 (66 percent) are 13 years or older.5
A. Foster Care Foster Care Target Outcomes: New Foster Homes and Net Foster Home Gains For SFY18, DHS committed to develop 1,075 new traditional, non-kinship foster homes. During this six-month report period (which represents the first half of SFY18), DHS, along with its private agency partners, approved 368 new traditional foster homes. For this report period, for the reasons described below, the Co-Neutrals find that DHS made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for new foster home development.
For SFY 18, DHS committed to achieve a net gain of 206 foster homes. For this six-month report period, DHS reported a net loss of foster homes with 64 fewer homes open at the end of the
5 Percentages in this paragraph may not add up to totals due to rounding.
19

period compared to the number of homes open at the beginning of the report period. Further, during this report period DHS did not take adequate steps to gain an understanding of the reasons for the high rate of foster home closures and did not implement expanded efforts to support and retain existing foster families. For this period, the Co-Neutrals do not find that DHS made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for a net gain in the state’s pool of foster homes.

Figure 5: New Foster Care Homes Developed by Month, July 2017-December 2017

80

70

60

53

50

40

30

20

10

0 Jul-17

74
Aug-17

75
Sep-17

68
Oct-17

48

50

Total New

Homes =

368

Nov-17

Dec-17 Source: DHS Data

Of the 368 new foster homes approved during this six-month report period, DHS developed 49 percent of the homes (182) and its partner agencies developed 51 percent (186).6

6 As of July 2017, DHS had 15 private agency partners recruiting traditional foster homes.
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Figure 6: New Foster Homes Developed by Agency, July 2017-December 2017 (N=368)
Private Agency
186 51%

DHS 182 49%

Source: DHS Data

Of the 368 foster homes approved during the first six months of SFY18, 214 families (58 percent) were newly recruited by DHS and the private agencies, 110 homes (30 percent) were already approved by DHS as adoption homes or kinship homes that were then converted to traditional foster homes to serve non-kin children, and 44 (12 percent) were DHS resource homes7 that were closed for more than a year and reopened during this report period.

7 DHS resource homes that are reopened could have been previously approved as a number of different types of DHS resources, including traditional, kinship, emergency foster care, TFC, and DDS homes.
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Figure 7: New Foster Homes by Type, July 2017-December 2017 (N=368)

Reopened

44

12% Kinship/

Adoption

Conversion

New

110

214

30%

58%

Source: DHS Data
Efforts to Recruit New Foster Homes
During this report period, DHS maintained its internal team of regional foster home recruiters and continued to collaborate with its private agency partners to develop new homes and move toward the SFY18 recruitment goals. The statewide Oklahoma Fosters campaign continued to support DHS’ efforts to recruit additional foster homes and held several recruitment events throughout Oklahoma during the period. Due to DHS’ substantial loss of foster homes over the last eighteen months, these recruitment efforts continue to be crucial to ensure DHS is able to build and maintain a robust pool of foster homes to serve children in DHS custody.
DHS made initial efforts to develop specialized, family-based placements for children with developmental disabilities. DHS established a team of five DHS recruiters to coordinate with DHS’ Developmental Disabilities Services (DDS) to develop new DDS Specialized Foster Care and Agency Companion homes, as well as identify any open, experienced foster homes willing and able to meet the specialized and therapeutic needs of children with developmental disabilities.8 This is a new recruitment team and DHS was still in the process of filling staff positions during the period. As of February 2018, DHS reported that three of the five recruiters had been hired and were completing cross-training with foster care and DDS and that the other two positions had been posted to fill.
8 Specialized Foster Care and Agency Companion homes are managed out of DHS’ DDS program office and children placed with these families, who receive specialized training, must meet specific disability diagnosis criteria to obtain the required Medicaid waiver for placement.
22

Some children with developmental disabilities meet the criteria for a Medicaid waiver, which allows them to be placed in specialized family-based homes that are managed by DDS. However, some children who present on a spectrum of high to low disability needs do not qualify for the waiver but still require additional services for them and/or their foster parents to meet their needs and advance their permanency, stability and well-being. In coordination with the Oklahoma Fosters team, DHS began conducting targeted outreach to build its foster home capacity for children with varying levels of disabilities and reviewing the different supports that can be offered to foster families willing to complete additional training and care for children with disabilities.
DHS has long faced the challenge of having a substantial waitlist for specialized DDS homes to care for all Oklahoma children needing a DDS home placement, not only for children in DHS custody with a developmental disability. As discussed further below, DHS, over the last two years, increasingly used the Laura Dester Children’s Center (Laura Dester), a state-run shelter in Tulsa, to place children in DHS custody who are dually or multi-diagnosed with complex behavioral, medical and developmental challenges.
DHS has found it most challenging to secure family-based placements for sibling groups, adolescents and children who present with some behavioral challenges but do not qualify for TFC or higher-level placement. DHS reports that it continues to update and implement new home recruitment plans targeted to these populations of children. However at this time, as discussed below, DHS’ data shows there are too few available foster home placements for children removed from their families. This limits DHS in its ability to ensure that best placement matches are made into foster homes capable of meeting a child’s needs.
Net Gain Target and Performance
DHS’ net gain target for the full 12 months of SFY18 was set at 206 foster homes. While DHS made progress with the development of 368 new foster homes during this report period, DHS closed more homes than it developed. DHS began the period with a starting baseline of 2,139 open foster homes and by the end of the six-month period, DHS reported 2,075 open homes, a net loss of 64 foster homes. Of the 2,139 foster homes open at the beginning of the period, 460 were no longer open at the period’s end, a high closure rate of 22 percent. Of these foster homes, 263 (57 percent) were DHS managed homes and 197 (43 percent) were foster homes managed by DHS’ private agency partners. Of the 368 new foster homes approved during this report period, 12 closed by January 1, 2018.
Oklahoma’s net loss of foster homes has been an ongoing problem that did not begin during this report period. Over the last three periods, from July 1, 2016 to December 31, 2017, DHS
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closed 1,465 foster homes, resulting in a net loss of 271 foster homes. Despite the steady decline in the number of children in DHS’ custody over the last four years, DHS continues to experience a shortage of foster homes due to these net losses. At the beginning of April 2018, DHS staff reported to the Co-Neutrals during a field office visit in Oklahoma City that there were only five foster homes in the county that were available for a new placement. To verify and further assess this reported foster home shortage, the Co-Neutrals reviewed in early May 2018 DHS’ real time foster home vacancy data that caseworkers rely on daily to identify available family-based placements. The report contains the list of all traditional foster homes (managed by both DHS and the private agencies) that have at least one vacant bed. The Co-Neutrals determined there were only eight foster homes in Oklahoma County with a vacancy, none of which indicated the foster parents were willing to care for a child over the age of 10. The data also showed that Oklahoma County had 18 foster homes with more children placed with the families than the number of children foster parents reported as their preferred number of placements.9 At the same time, DHS’ placement data showed that during the same month (May 2018), DHS removed 41 children whose county of jurisdiction is Oklahoma County and 17 of these 41 newly removed children were placed in traditional foster homes; however, only nine of these 17 children were placed in Oklahoma County.
In Tulsa County, there were only 13 traditional foster homes at the beginning of May 2018 with a vacancy and of these only five foster homes were vacant with no child placements. New removal placement data for May 2018 showed that DHS removed 58 children whose county of jurisdiction is Tulsa with 26 of these children entering a traditional foster home as their first placement; however, only eight of these 26 children were placed in a Tulsa-based foster home.
Statewide, DHS’ data showed just 170 traditional foster homes had at least one vacant placement at the beginning of May 2018, with only 19 of 170 homes willing to accept placement of a child older than 12 years. Only 91 homes statewide were vacant with no current placements. During the month of May 2018, DHS removed 353 children statewide with 153 children entering traditional foster homes for their first placement: 99 of these 153 children were placed in foster homes outside of their county of jurisdiction. During this sixmonth report period, DHS’ data showed that statewide the department removed an average of 390 children each month and that an average of 446 children exited care each month. Even taking into account that DHS’ data shows that the number of child exits from custody exceeded the number of children entering care during the period and that nearly half of all newly
9 A foster home can be licensed to accept the placement of more children than the preferred number of placements identified by the foster parents. As such, this data showing placements above a foster family’s preferred number of placements does not necessarily mean these homes are overfilled.
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removed children are placed in kinship homes, DHS will have to maintain a larger pool of available traditional foster homes to sufficiently meet the family-based placement needs of children entering DHS custody.
The Co-Neutrals have raised concerns in prior Commentary reports about the high percentage of foster homes that remained vacant for extensive periods of time, many of which were listed as unavailable for placements. DHS has worked over the past 18 months to assess whether these homes should remain open and has taken action to close the homes of families unwilling to accept placements. The Co-Neutrals support DHS’ efforts to close foster homes that will not accept placements so that DHS knows with certainty its viable foster home capacity. Despite the closure of vacant and unavailable foster homes contributing to foster home net losses, families who did not accept placements were not viable resources and DHS’ past practice of maintaining those families on the roster of open foster homes masked the need for the development of additional foster homes. With the closure of such homes, DHS now has a better picture of the actual number of foster homes available and willing to accept child placements. DHS worked diligently to close homes that were not viable; however at the end of this process, DHS had not gained a full understanding of the reasons these foster families decided to close their homes.
The Co-Neutrals previously urged DHS to establish a process to enable the agency to gain an understanding of the reasons for Oklahoma’s high foster home closure rate. Acknowledging over one year ago that the department needed “to assess the ongoing trend of high closure rates of resource families,” DHS in April 2017 issued guidance to staff to document in DHS’ KIDS database system the most accurate reason for each home closure as a first step in this assessment. In July 2017, DHS foster care caseworkers and supervisors were provided instructions on the use of an updated and expanded menu of closure reasons that the department added to the KIDS database system. By the middle of this report period, DHS shared that the information gathered from staff’s recorded home closures did not indicate any specific trend or issue was leading to the high closure rate.
DHS leadership reported that the expanded menu of closure reasons is limited in terms of providing a qualitative assessment of how practice and supports should be improved to better retain foster parents. However, the expanded closure menu in KIDS provided DHS with data regarding closure reasons that can serve as a starting point for a qualitative assessment of why families leave the system. The breakdown of reasons for closures are outlined in the chart below. Of the 512 foster homes that closed during this report period, twenty six percent (132)
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of the families had adopted a child, which resulted in closure due to permanency.10 However, 159 families (30 percent), closed their homes due to: the family having no desire to foster or adopt; dissatisfaction with the foster home process; the family’s placement preferences not being met; and the family not being able to meet a child’s needs. The remaining 221 homes were closed due to administrative agency decisions, changes in family circumstances, and requests by families to provide only respite care for children and a small number of other unknown reasons.

Figure 8: Traditional Home Closure Reasons, July - December 2017

Resource Closures July to December 2017

# Resources

ADOPTION SERVICES COMPLETED

132

AGENCY DECISION-CONTRACT VIOLATIONS

7

AGENCY DECISION-FAILURE TO COOPERATE

10

AGENCY DECISION-LEGAL ISSUES

2

AGENCY DECISION-REFERRAL/INVESTIGATION

21

RESOURCE REQUEST-DISPLEASED WITH PROCESS

16

RESOURCE REQUEST-FAMILY DYNAMIC CHANGED

68

RESOURCE REQUEST-MEDICAL/ILLNESS

26

RESOURCE REQUEST-MOVING

31

RESOURCE REQUEST-NO DESIRE TO FOST/ADOPT

133

RESOURCE REQUEST-PLCMT PREFER NOT MET

3

RESOURCE REQUEST-UNABLE TO MT CHILD NEED

7

RESPITE ONLY

43

OTHER

11

AGENCY TRANSFER

2

TOTAL CLOSURES

512

Data Source: Net Gain and YI035

% Resources
26% 1% 2% 0.4% 4% 3% 13% 5% 6% 26% 1% 1% 8% 2% 0.4% 100%

In order to engage with foster parents to gain an understanding of the reason for foster home closures, DHS committed to utilize its monthly customer service survey calls to contact foster parents who requested to close their homes and whose foster homes were closed during the

10 As noted above, 460 of the 512 homes closed during this period were calculated in the overall home closure rate, because these homes were open on the first day of the SFY. Additionally, 12 homes closed that were part of the 368 new homes opened during the year and count toward the new home target. Lastly, 40 homes closed during the year that were new homes opened during the year that, for various reasons, do not count toward the new home target.
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prior month.11 DHS and the Co-Neutrals agreed in September 2017 that DHS would undertake this qualitative assessment with the exit survey calls starting in November 2017, allowing time for DHS to develop a brief closure reason survey of six questions and a process to record and track survey responses. Questions in the survey include: tell us about what led you to the decision to no longer be a foster parent; and, is there anything you would recommend DHS (or applicable agency) consider doing differently that might enhance the experience of foster parents. DHS planned to select families from the pool of traditional foster homes that closed in October 2017 and then continue the survey process in each subsequent month.
For the 110 foster homes DHS contacted in November and December 2017, DHS found that approximately 40 of the homes should not have been part of the survey sample as some were still open and others were kinship homes, which were not designated to be part of the survey. DHS reported that based on the sample of homes that were correctly called, no obvious trends were identified. However, DHS did find “there may have been some instances in which communication between the assigned resource worker and family was not clear as to the home’s closure. In some cases, the families pointed out they were requesting time to take a break, but were encouraged by their worker to close their resource home.” Based on these communication concerns, DHS reported in February 2018 it is now requiring that for any traditional foster home requesting to close, the assigned supervisor or field manager must contact the family to inquire about their experience, resolve any issues when possible and ensure there has been clear communication between the family and their assigned caseworker.
It was not until well after the close of this report period that DHS began to glean some preliminary information on some underlying reasons foster families requested home closure. Specifically, in June 2018, DHS reported to the Co-Neutrals that the home closure exit surveys completed with 52 families that closed their homes between January and March 2018 were beginning to provide some initial insights on the reasons these foster homes closed. The CoNeutrals support DHS’ efforts to gather this feedback from foster parents and encourage the department to use these surveys to obtain as much qualitative information it can to best inform what actions DHS should take to support and retain foster families. The Co-Neutrals will report on DHS’ findings in the next Commentary.
11 As highlighted in a prior Commentaries, DHS still maintains the practice that foster care workers must contact their assigned foster homes at least one time per month and visit the families in their homes once every three months.
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Supporting Foster Parents
More than a year ago, DHS began to survey foster parents each month on the challenges they experienced fostering Oklahoma’s children. Through the survey, foster parents identified additional training opportunities as an important and unmet need. (See Appendix B) Specifically, foster parents requested training regarding effective care for teens, including how to manage their behaviors and guide them appropriately toward adulthood. Foster parents also identified training needs regarding: how to respond therapeutically to the behavioral health challenges and needs of foster children; the child welfare and court processes from removal to reunification; and, working with and understanding the perspective of biological families. Foster parents also requested more training availability in local and rural areas.
In their last Commentary, the Co-Neutrals highlighted some of these foster parent training requests and encouraged DHS to ensure that foster families are aware of the numerous topics available in the in-service training program and to assess where additional training should be developed or updated for foster families. DHS reported that its foster care and adoption staff were sent in June 2017 a listing of all foster parent in-service trainings available online, as staff previously were not aware of the courses available to foster parents. However, DHS, as of April 2018, had not yet shared directly with foster parents the full list of online trainings that are available.
DHS has decided only foster families approved and managed by DHS are ensured full, free access to all online training. Foster families managed by private agencies have free access to pre-service training and a limited number of in-service trainings. DHS expects that the private agencies will work with the National Resource Center for Youth Services (NRCYS), the purveyor of the largest menu of foster parent trainings in Oklahoma, to establish a payment agreement to allow the more than 1,000 private agency foster homes access to in-service training resources. DHS should ensure that both its own foster parents and private agency foster parents have access to all available trainings that will help to strengthen their capacity to safely and effectively care for children and youth in DHS’ custody. DHS reports the department has begun to address the need for greater access to foster parent training, including working with the state’s Foster Care and Adoption Association in each region of the state to meet some of the needs identified through the Foster Parent Support Workgroup.
Just over two years ago, DHS established its Foster Parent Support Workgroup to identify services or supports foster parents need, develop solutions to any trending concerns impacting foster families and proactively explore opportunities for service enhancements. The workgroup was developed as a core strategy to help retain foster parents. At the mid-point in this period,
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DHS reported that this workgroup had completed its assigned tasks, was on hiatus and had not met since April 2017. (The exception was a subgroup that continued to meet to focus on and address training issues.) DHS later clarified that the workgroup had reconvened in mid-February 2018. The group includes DHS child welfare staff and representatives of tribes, foster care private agencies and other community partners, foster parents and foster parent advocates. The Co-Neutrals do not presume that this one workgroup could have reversed the trend of high foster home closure rates over the last three periods; however, it is of concern that DHS placed the workgroup on hiatus during the time it was experiencing net losses in foster homes. The CoNeutrals urge DHS to make focused efforts to utilize the workgroup and all available means to communicate with foster parents in order to identify their needs and, in collaboration with foster parents and private agency partners, build supports to strengthen and retain the foster homes Oklahoma has worked to develop.
Foster Home Board Rate
As previously reported, the monthly board rate payment provided to foster and adoptive families was reduced by five percent effective July 1, 2017, which is approximately one dollar per day for each child they foster or have adopted. DHS had announced that statewide revenue failures led to the department’s decision to reduce the rates but also highlighted that the daily rate for foster and adoptive parents would remain approximately four dollars per child above the rate provided prior to 2012 when the reform effort began. In a positive reversal, the Oklahoma Legislature and Governor Mary Fallin restored at the beginning of the SFY17 the five percent reduction and provided an additional five percent increase, which will go into effect July 1, 2018.
The need for DHS to develop, support and retain foster parents capable of providing homes for children in the state’s custody has reached a critical point. Moving ahead DHS must sustain the efforts it began after the close of this report period to understand the reasons more foster parents are leaving the system than entering. DHS must then provide services and support to retain foster families in order to ensure Oklahoma can provide available and safe foster homes for children in need of family-based placements.
B. Therapeutic Foster Care
Children who are eligible to be placed in therapeutic foster care (TFC) homes have been assessed to have emotional and behavioral health needs and can live in the community with specially trained foster parents and therapeutic services. DHS has established TFC homes as a key component of Oklahoma’s continuum of care resources. TFCs are intended to ensure that appropriate services are provided for children in need of behavioral health treatment to avoid
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placing children in higher-levels of congregate care, offer family-based placements for those children ready to step-down from higher-levels of care and support more stable placements.
Since the beginning of the reform, DHS has faced several challenges within the TFC program, which the Co-Neutrals have documented in previous reports. One of the primary challenges is the continuing net loss of TFC homes over the past five consecutive report periods. For the sixth consecutive period, DHS reported having fewer TFC homes to serve children in DHS custody at the end of the report period compared to the beginning of the period. The continuous net loss of TFC homes is a result of inadequate focus and efforts to develop new TFC homes, which DHS has consistently reported below the established, annual Target Outcome.
TFC New Home Development and Net Gain/Loss

DHS contracts with eight private agencies to recruit, manage and support TFC homes; unlike traditional foster homes, DHS does not recruit and manage its own TFC homes.12 The CoNeutrals accepted DHS’ proposed Target Outcome for new TFC home development for SFY18, which is set at 138. During the first half of SFY17, DHS reported that its private agency partners developed only 19 new TFC homes that met the established criteria for counting new TFC homes.

Figure 9: New Therapeutic Foster Homes by Month, July 2017-December 2017

6

5

5

5

4

4

4

Total

3

New

2

Homes =

1

19

1

0

0

Jul-17 Aug-17 Sep-17 Oct-17 Nov-17 Dec-17

Source: DHS Data

12 At the beginning of the report writing, DHS had contracts with ten TFC private agencies and subsequently reported that TFC contracts with two agencies were ended. For this report period, only seven of the ten agencies with contracts at the start of the period developed at least one new TFC resource home.
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Of the new TFC homes, nine were brand-new homes, three were adoption/kinship home conversions, and seven were reopened homes.
TFC Net Gain/Loss
On July 1, 2017, DHS began the fiscal year with a starting baseline of 280 TFC homes and ended the six month period with 225 open TFC homes on January 1, 2018, representing a net loss of 55 TFC homes. The SFY18 net gain target was established at 20 TFC homes. Of the 280 TFC homes open on July 1, 2017, 84 were no longer open on January 1, 2018, resulting in a TFC home closure rate of 30 percent within the first half of the fiscal year. Of the 19 new TFC homes DHS’ partner agencies developed from July 1, 2017 to December 31, 2017, two homes closed by January 1, 2018.
During the period, the number of children placed in a TFC home also declined substantially (24 percent) from 307 children on June 30, 2017 to 232 children on December 31, 2017. The decline is even starker (44 percent) when reviewed over a one-year period, as there were 413 children in a TFC placement on December 31, 2016. The fundamental result of DHS’ diminished pool of available TFC homes is that fewer children with behavioral challenges are cared for in specialized family-based placements with increased therapeutic supports.
TFC Waitlist and Home Vacancies
Despite the continuing decline in the number of open TFC homes in Oklahoma, the waitlist of children who need a TFC placement also has fallen significantly. In May 2018, DHS’ TFC waitlist showed a total of 41 children, representing a marked, steady decline from 120 children on the waitlist in March 2016 and 62 children on the waitlist in March 2017.
In numerous prior reports, the Co-Neutrals highlighted that DHS’ data showed an incongruity between a TFC waitlist of over 100 children and a significant number of TFC homes appearing as vacant, often for extended periods of time.
DHS, during the second half of calendar year 2016, undertook a comprehensive evaluation of its TFC program, which included a review of longstanding vacant homes, the TFC child waitlist, the challenges with effectively matching children with TFC families and the quality of therapeutic services and care in TFC homes. DHS found that a substantial number of open, vacant TFC homes needed to be closed for a variety of reasons, including families no longer wanting to care for children with higher-level needs and homes being interested only in providing temporary respite care and not full time therapeutic foster care for a child with behavioral needs. DHS has committed to make it a standing practice to maintain a more accurate account of the pool of open and available TFC homes and to work with its TFC partner agencies to routinely review
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TFC homes with extended vacancies to determine which homes that should remain open for TFC placement and which should be closed.
Of the 225 TFC homes open on January 1, 2018, 62 homes (28 percent) had no TFC placement and 17 (eight percent) had been vacant for more than 90 days. Forty-four TFC homes were vacant of any placements, 129 had only TFC child placements; 18 had non-TFC placements only; and the remaining 34 had a combination (with a total of 69 non-TFC kids).13
With respect to the TFC waitlist, DHS reported that its TFC program assessment determined there were children placed on the TFC waitlist who should not have been included or maintained on the list. DHS had previously reported that all children on the waitlist had received initial approval for TFC placement by the Oklahoma Health Care Authority (OHCA), the authorizing state agency. However, DHS leadership subsequently came to understand that individuals, including DHS caseworkers and supervisors, outside of the TFC program office were adding children to the waitlist, sometimes without an authorization request ever being submitted to OHCA.14 As a result, there were children on the waitlist who had not received initial authorization from OHCA, and who, based on their diagnosis, were not eligible to receive authorization to be placed in a TFC home. DHS also found children on the waitlist who had been stabilized in non-TFC placements (family-based and higher-level settings) that more appropriately met their needs and therefore no longer required a TFC home.
Improved Child Placement Process
DHS developed a new management tool called the Application for Therapeutic Foster Care (“Application”), which it began using in May 2017 to aid the child placement process. The Application, which DHS updated during this report period, is a form that includes information about a child that is supplied by a child’s caseworker to DHS’ TFC program staff when the decision is made to request authorization for a TFC placement. The Application replaced a onepage worksheet, which most caseworkers previously completed to request a TFC placement. OHCA reviews the completed Application for each child to make an initial decision to authorize TFC level care. Only after initial OHCA authorization is received will DHS’ TFC program staff add a child to its TFC waitlist, assuming a TFC placement is not available immediately upon request. DHS now distributes a child’s Application to the TFC agencies only after a child has received an
13 Of those homes with a combined number of TFC and non-TFC children placed together, five was the maximum total number of children placed (three TFC and two non-TFC children), which occurred in just one TFC home. This was followed by a maximum of four children placed (two TFC and two non-TFC children), which occurred in four TFC homes. The most frequent combination of TFC and non-TFC child placements together appeared in 17 TFC homes that had one TFC child and one non-TFC child. 14 Upon the request of DHS’ TFC program office, OHCA determines if a child in DHS custody meets the state of Oklahoma’s established criteria and is authorized to be placed in a TFC home.
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initial authorization from OHCA for TFC level of care. To help ensure that the TFC waitlist is accurately maintained, DHS has established that only TFC program staff can place a child on the waitlist.
By gathering more comprehensive information through the new Application about each child’s needs, diagnosis to date and placement and behavioral histories, DHS is in a better position to communicate and match the needs of a child to available homes managed by the TFC agencies. DHS reports the new Application has helped to reduce the amount of time a child remains on the waitlist prior to being placed in a TFC home. To support more timely placements, DHS also continued through this review period to host weekly calls with the TFC agencies to review children waiting for a TFC placement and discuss available and possible TFC home matches. DHS has reported that it is reassessing the best structure and schedule for these child specific placement reviews as program staff believe they can be managed more efficiently and effectively for DHS and the participating agencies.
DHS reported that since May 2017, when the department began to use the Application, there has been a steady decrease in the number of children for whom DHS submits an Application to OHCA for TFC approval. DHS also reported that it cannot pinpoint one reason why the number of Applications and requests for TFC placements has declined from 133 in May 2017, to 78 in July 2017 and 48 in September 2017. DHS ended the year with 62 Applications submitted in December 2017. However, DHS reported that child welfare staff and TFC staff alike have become more familiar with the information gathered for the Application, particularly regarding a child’s treatment history and diagnoses, and will identify upfront which requests OHCA will deny. This expanded awareness can lead DHS to pre-emptively end the Application process and not submit the request to OHCA. However, given the significant decrease in the number of TFC placement authorization requests submitted to OHCA, DHS needs to ensure that children who need and could be authorized for TFC services are supported through the full TFC Application and placement process.
DHS noted the primary reasons OHCA denies TFC authorization requests include a child having a developmental level or disability that does not meet the TFC authorization criteria, and a child having behavioral challenges and needs that are too acute to be met in a family-based setting, including a TFC home.15 That said, DHS still needs more TFC homes to best care for children who do meet the TFC placement criteria. In addition, the department also needs therapeutic placements (family-based and higher-level) that can meet the behavioral and developmental needs of children who are not approved for TFC homes.
15 Children who are diagnosed with a developmental disability are not eligible for a TFC placement.
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Quality of Therapeutic Services and Care in TFC Homes
Through its qualitative review of therapeutic diagnoses, treatment plans and services for 65 TFC placed children, which DHS completed over one year ago, DHS found various deficiencies in the quality and individualized nature of the services these children received. To address the identified concerns regarding the quality and effectiveness of TFC treatment services, DHS committed through its January 2017 enhanced core strategies to establish a multi-disciplinary staffing team for each child, which would include a mental health consultant for children entering or already placed in a TFC home, as well as the child’s permanency caseworker.
To meet this commitment, DHS sought to leverage the OHCA requirement that each TFC child’s individual treatment plan and clinical progress be assessed every 90 days. Specifically, DHS committed that its TFC liaisons would coordinate efforts between TFC providers and DHS caseworkers and field staff to prepare for each child’s 90-day assessment and treatment team meeting. Although the 90-day assessment has been a long-standing requirement, DHS and private agency representatives reported that the assigned permanency caseworkers, although provided a standing invitation to these reviews, generally do not participate in these 90-day assessments. Clearly there is value in a child’s permanency caseworker participating in these regularly scheduled sessions, including to ensure everyone has a shared understanding of a child’s permanency and treatment goals, objectives and progress. At the same time, DHS recognizes that caseworkers do not always have the clinical expertise to assess a child’s treatment needs and progress and, as a result, committed to supporting caseworkers and these discussions with DHS’ in-house mental health consultants.
As previously reported by the Co-Neutrals, a lack of staff resources and organizational capacity in the TFC program resulted in DHS not initiating this commitment during the last period. Instead, DHS reported in October 2017 that it shifted to establish a pilot group, focused on one TFC agency, to implement a “standardized process for these reviews that allows for more focus on the quality of care the children are receiving than tracking down staff for paperwork completion.” DHS further reported in October 2017 that its goal was to implement a similar process with several other TFC agencies during the following few months.
After the period ended, in March 2018, DHS reported that the one participating agency in the pilot group reported that “scheduling and maintaining vigilant contact with the [permanency caseworker] assigned has increased their participation in the 90-day reviews.” The Co-Neutrals are concerned this is the only progress DHS has reported with respect to assessing whether children receive quality therapeutic care in the TFC program. While DHS has reported that it is encouraging all TFC agencies to take a similar approach and be more vigilant in coordinating with assigned caseworkers, the department has not specified what, if any, agency-wide plans or
34

communications it developed to offer guidance or stress the importance to its caseworkers to participate in these treatment review sessions if a child assigned to them is placed in a TFC.
As of March 2018, the department had still not gathered any particular findings regarding the therapeutic diagnoses, treatment plans and quality of services for the reviewed children despite DHS reporting the goal of its single agency pilot was to focus on the quality of care children receive, rather than tracking down caseworkers.
DHS reported, after the end of the period, that a Master of Social Work practicum student was beginning to work with DHS’ mental health consultants to focus on 20 children and conduct “a new type of review to better focus on the quality of care and actual treatment the children are receiving while placed at the TFC agencies.” For this review, DHS selected 20 children who have been in a TFC placement for over three years in order to “better understand the lack of clinical progress, specifically with these children, and through review opportunities better understand what is needed for the child to be successful.” The Co-Neutrals will report on DHS’ efforts and any available findings from this review in their next Commentary.
DHS and the Co-Neutrals have discussed concerns about the quality of TFC services and the preparedness and willingness of TFC families to meet the higher-level needs of children placed in TFC-approved homes. Although DHS identified concerns with the quality of TFC treatment services through its 2016 child case review, the department’s focus to address these concerns has been modest, at best. As a result, DHS has not reported any meaningful improvements to the quality of the treatment and therapeutic services children in these homes receive.
TFC Program Improvement Efforts: Maltreatment in Care, Placement Stability and Training
DHS made efforts to address the disproportionate rate of maltreatment experienced by children in TFC homes when compared to other family-based placements for the period of October 2015 through September 2016. Through new provisions included in the department’s SFY18 contracts with the TFC agencies, DHS required several specific remedial actions to address confirmed incidents of maltreatment or potential safety risks identified through a maltreatment investigation or referral. DHS’ most recent maltreatment data for this period showed a reduction in the number of child maltreatment substantiations in TFC homes.
With respect to placement stability, DHS sought, also through new contract provisions, to reduce placement disruptions in TFC homes through monetary sanctions against the TFC agencies. DHS established that an agency would be sanctioned $250 per placement disruption when the numbers of placement disruptions exceeded the number of successful placement transitions (i.e., moving to a kinship home or trial reunification) an agency makes during each month of SFY18. DHS reported that it issued a total of 16 monetary sanctions during the sixmonth period of July through December 2017.
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Regarding the specialized pre-service training that TFC foster parents receive to advance their skill set and abilities to safely meet the therapeutic needs of children with behavioral and emotional challenges, DHS identified the need to establish a different training program for TFC homes. Through its analysis of the TFC program in 2016, DHS found that some TFC resource families had not acquired the ability to meet the higher acuity needs of children who DHS places in TFC homes. This identified lack of skill and preparation has contributed to placement instability and maltreatment in TFC homes. DHS found that the supplemental training (Behavior Crisis Management Training), which all TFC families must complete in addition to the 27-hour training (Guiding Principles) that all other foster parents must complete, was outdated and endorses the use of physical therapeutic holds, which can escalate physical encounters between children and their TFC caregivers. After partnering with its consultants to review and evaluate several other training modules used across the country, DHS selected a new preservice training model (Pressley Ridge TFC) for all TFC families starting in July 2018. Further, starting in August 2018, all new families certified as a TFC home will complete only this training and not have to complete the Guiding Principles training required of all traditional and kinship foster homes.16
DHS TFC Program Staff and Capacity
The Co-Neutrals have stressed to DHS that additional efforts are needed to expand the state’s pool and continuum of therapeutic, family-based placements as the TFC program has continued to shrink every report period, as represented by: the number of open, available homes; the number of partner agencies recruiting and managing TFC homes in Oklahoma; the number of DHS staff managing the state’s TFC program; the number of children placed in TFC homes and the number of children authorized for TFC level services.
Throughout this report period and since the beginning of this reform effort, DHS’ TFC program office has operated with an inadequate number of staff, which has impacted the strength of this program and impaired DHS’ implementation of its core strategies, particularly with respect to the department’s commitment to conduct regular, structured reviews to ensure children are receiving quality and effective therapeutic services. DHS reports the department began to hire more staff for the TFC unit beginning in late 2017.
Over the last several years, DHS acknowledged it had exhausted options to adequately meet the needs of children requiring family-based therapeutic services by relying solely on Oklahoma’s existing TFC program. DHS leadership shared that the department needed to
16 DHS reports that the exception will be for TFC families who may later decide to adopt a child in DHS custody: these families also will have to complete the Guiding Principles training required of traditional, kinship and adoptive families.
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explore a different approach to build its continuum of therapeutic, family-based placements for children in DHS custody who present with varying levels of behavioral, emotional, development and medical diagnoses and needs. In the meantime, DHS continued to work with its contracted TFC agencies to restructure the processes, as discussed above, used within the current TFC program and focus its efforts to expand foster homes with therapeutic services by supporting its TFC agency partners with recruitment training offered by the department’s national consultants.
In this report period, the Co-Neutrals raised concerns with DHS regarding the low number of new TFC homes that had been developed, with only nine new TFC homes developed by September 31, 2017 and zero new TFC home approvals recorded for the month of September. The Co-Neutrals met with DHS leadership to urge the department to explore additional familybased therapeutic models that can support the stability, permanency and well-being of children in DHS custody whose caregivers may require additional, specialized supports and services to meet a child’s behavioral and emotional needs.
The Co-Neutrals suggested that DHS revisit a review of the state’s Systems of Care (SOC) services that are coordinated through the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) to assess if the SOC services provided to children in DHS custody and their family-based caregivers represented a form of therapeutic foster care that DHS could maximize through expanded access for children in out of home care.17, 18
Although the Co-Neutrals previously understood from DHS that access to SOC services statewide was limited, DHS and ODMHSAS reported in October 2017 that the SOC program was serving 6,500 children (mostly children not in DHS custody) across the state, in 77 counties with two to three providers per county and three to five SOC teams per provider. DHS’ liaison to the SOC program reported that DHS had underutilized SOC and that the service providers under the SOC umbrella had as much training, if not more, than those providing services through the TFC program.
17 In SFY16, DHS had identified expanded statewide access to SOC services for child in custody as a core strategy to improve placement stability outcomes, starting with embedding SOC coordinators in DHS’ Region 4 offices. DHS later reported that the availability of SOC services was limited statewide, which led to DHS and the Co-Neutrals agreeing that SOC services would not remain a part of the department’s strategy to advance placement stability. 18 Oklahoma policy states that its System of Care is a framework that offers a comprehensive array of behavioral health and other support services organized into a coordinated network to meet the multiple and changing needs of children with serious emotional disturbances and their families. SOC offers services that are individualized to each child, family, and community, and includes services that are strengths-based and grounded in partnerships with families that include case management, collaboration with all child-serving agencies and a philosophy of wraparound services.
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The Co-Neutrals offered to work with DHS to conduct a case record review of children in DHS custody who receive SOC services to assess if the SOC and TFC programs provide commensurate therapeutic supports and if a child in the SOC program, while placed in a regular kinship or traditional foster home, could “count” toward DHS’ Target Outcome for therapeutic foster care. Unfortunately, an initial assessment of the 240 children in DHS custody who were reported as receiving SOC treatment services found that only 14 of these children (six percent) received 12 or more hours of services per month, the minimum service hours that ODMHSAS established for the SOC program. In fact, the data showed that the majority of children received well below the established service standard for the program.
At this point, the Co-Neutrals and DHS agree that the billing data and case information reviewed for the SOC program and services do not indicate that SOC services can be considered equivalent to TFC services, which requires a therapist to provide two hours of service each week (one hour with the child alone and one hour with the child and their TFC caregiver(s)) and that the trained TFC parents conduct therapeutic work with the child for 1.5 hours every day. Although the SOC-serviced homes will not be counted in the state’s pool of therapeutic foster homes at this time, the Co-Neutrals encourage DHS to continue discussions and qualitative reviews with ODMHSAS to evaluate how the SOC statewide network of service providers can best support outcomes for children in DHS custody and assess where the state can expand on any successes that the SOC program can report for children in care. As discussed further below in the placement stability section of this Commentary, DHS has since revisited use of SOC as a strategy to help prevent placement disruptions and support stability in foster homes that can safely meet the needs of children who present with behavioral challenges.
At the end of this report period and prior to completing the review of the SOC claims data and selected records for children in custody, DHS included as one of three revised core strategies the hopeful anticipation (of both DHS and the Co-Neutrals) that SOC-serviced homes could help supplement the state’s reported pool of therapeutic foster homes toward the Target Outcome for TFCs. Another strategy included in DHS’ December 2017 revised TFC core strategies is a plan to convert traditional foster homes to new TFC homes that would count toward the Target Outcome. As a first step in this strategy, DHS committed to develop for the Co-Neutrals’ review and approval a proposed protocol to convert these homes.19
The remaining strategy that DHS proposed to support its contracted TFC agencies to recruit more TFC homes was assigning one DHS traditional foster home recruiter to partner with one TFC agency and “work events and other recruitment activities together to bring in families
19 Currently, the criteria for counting new TFC homes do not allow DHS to count homes that are already open as a traditional foster home.
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specifically for the TFC program.” Through a shared exchange of resources, DHS proposed that the TFC agencies would train the DHS recruiters on the various particulars and information relevant for recruiting TFC homes and DHS would develop new TFC home recruitment materials. As this strategy was proposed at the end of the report period, the Co-Neutrals will provide an update on this effort in their next Commentary.
New Staff Assigned to DHS’ TFC Program
In December 2017, DHS further committed to develop a new staff position in the TFC program to serve as the “recruitment navigator/coordinator” for new families coming through the recruitment pipeline and manage the process to convert existing resource families to TFC homes. DHS reported in May 2018 that the new position was approved and was posted for applicants in April 2018, with the selected individual expected to be hired and in the position no later than July 1, 2018.
In addition, DHS announced after the end of the period that it had decided to add to the TFC program office a special unit focused on the statewide recruitment of homes for children with developmental disabilities (e.g. agency companion homes). DHS is moving this unit of recruiters (one supervisor and five child welfare specialists) from DHS’ Developmental Disabilities Services (DDS) program office to the TFC program where these specialists will conduct recruitment activities for both TFC and DDS homes to expand the capacity to care for children with higherlevel needs in family-like settings. DHS further reported after the end of the period that it planned to hire one additional child welfare specialist (III) to support the daily programmatic operations of the TFC unit.
In DHS’ most recent statewide core strategy update to the Co-Neutrals in May 2018, the department reported that it was “going to focus on thinking through alternative options to the current TFC model since the recruitment and retention activities by the private TFC providers is not a long-term sustainable plan for any of them to continue engaging in this work.” DHS and the Co-Neutrals have agreed on this for several years now. This does not mean that DHS’ current TFC agency partners and TFC homes do not continue to be a valuable component of Oklahoma’s continuum of care. However, DHS must now take aggressive and focused actions to bridge the state’s placement gap of family-based therapeutic care for children with various levels of specialized needs and fully engage in this alternate planning.
The Co-Neutrals also encourage DHS to actively support the current TFC agencies on ways to implement effectively the recruitment training its TFC partners received over the last year. During a meeting of DHS and the TFC agencies in early November 2017, the Co-Neutrals observed that there was minimal discussion and strategizing on how to expand recruitment of
39

new TFCs, as well as no coordinated discussion of how to apply the approaches and skills transferred to the agencies through their new training.
The outcome of only 19 new TFC homes developed over six months reflects inadequate efforts to achieve progress toward the Target Outcome. While DHS presented several new strategies at the end of this report period, as well as some resources to help expand the state’s family-based therapeutic resources, DHS’ efforts to grow its pool of TFC resources were unfocused, untimely and under-resourced during this report period. As a result, DHS reported a net loss of 55 TFC resources over the six months ending in December 2017. The Co-Neutrals do not find that DHS made good faith efforts to achieve substantial and sustained progress toward the new home development and net gain Target Outcomes for TFC resources for this report period.

C. Caseworker Caseloads and Supervisor Workloads
Establishing and maintaining manageable caseloads for child welfare caseworkers is essential to child safety, well-being and permanency. DHS committed to achieve the following caseload standards for child welfare workers and workload standard for supervisors:

Table 2: Pinnacle Plan Caseload and Workload Standard Commitments

Role

Standards

Weight Per Case

CPS OCA Family Centered SPervmicaensency Planning Resource Family SApdeocpiatiloisnt Supervisors

12 Open Investigations or Assessments 12 Open Investigations 8 Families 15 Children 22 Families 16 Children 1 Supervisor Dedicated to 5 Workers

0.0833 0.0833 0.125 0.0667 0.0455 0.0625 0.2 per worker

During this report period, DHS maintained caseload performance substantially better than its baseline at the outset of this effort. That said, during the period DHS continued to experience a dramatic increase in the number of referrals accepted for investigation, specifically during the summer and early fall of 2017. This contributed to a sharp rise in the number of overdue maltreatment investigations. As of November 2017, the backlog of overdue child maltreatment investigations had reached more than 800 cases. The increase in investigations contributed to a decline in caseload compliance, which was further evidenced during the reporting period by a divergence in two critical data points: total workload (all cases assigned and managed) and the workload capacity DHS caseworkers are eligible to carry under the caseload standards. By the

40

end of September 2017, DHS’ data showed that for the first time since the summer of 2016 total workload exceeded total workload capacity.
As a result, DHS did not make gains in the number of caseworkers meeting caseload standards, and in fact, reported a decline in caseload performance by the end of the period (December 31, 2017) as compared to the end of the previous period (June 30, 2017). As investigations surged during the period, and the CPS backlog grew, DHS proactively developed and implemented a Workload Improvement Plan (WIP) to hire more workers, maximize existing workforce capacity by temporarily increasing the number of cases a new caseworker can carry under the department’s graduated caseload program and launching an overtime plan.20 DHS’ data shows that while the number of caseworkers meeting caseload standards declined this period compared to the previous reporting period, DHS was able by the end of the period to improve its performance from its lowest ebb during the period. The department also reduced the number of CPS cases overdue for resolution, which totaled 618 on December 31, 2017, and reduced the number of workers carrying a caseload over 200 percent of the caseload standard. DHS responded with focus to the workload challenges encountered this period and made good faith efforts to protect the substantial and sustained progress it has made toward the Target Outcomes in prior periods.
To achieve its caseload Target Outcomes in 2018, DHS developed a Workload and Hiring Plan that commits the department to hire 547 caseworkers by December 31, 2018 and includes district-specific plans to support hiring and retention goals. The Co-Neutrals will continue to monitor DHS’ implementation of its Workload and Hiring Plan to assess whether the department continues to make good faith efforts to achieve substantial and sustained progress toward the Target Outcomes.
Performance – Target Outcomes Quarterly Caseload Data (October-December 2017)
DHS reports that 67.9 percent of all caseworkers met the established caseload standard for the last three months of the period (October 1, 2017 – December 31, 2017). Since last period, DHS’ quarterly caseload performance declined from 71.8 percent of caseworkers meeting the caseload standard.
20 In February 2018, DHS made permanent the modified graduated caseload assignments, which is discussed in greater detail in this section.
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Figure 10: Worker Caseloads: Percent of Workers Meeting Caseload Standards

80.0% 70.0% 60.0% 50.0% 40.0% 30.0%

66.0% 68.9% 71.8% 67.9% 55.5% 49.1%
35.0% 31.2%
27.0%

20.0%

10.0%

0.0% Baseline June 2014 Dec 2014 June 2015 Dec 2015 June 2016 Dec 2016 June 2017 Dec 2017

Source: DHS Data

DHS’ quarterly performance for the first three months of this report period (July 1, 2017 – September 30, 2017) showed a slight improvement in performance compared to caseloads in the preceding quarter (April 1, 2017 – June 30, 2017) of the last period. For the first three months of the current period, DHS reports that 72 percent of caseworkers met the caseload standard. The decline in caseload performance from the first to second quarter (72 percent to 67.9 percent) of this report period was largely due to the steadily increasing number of investigations assigned to caseworkers. The spike in assigned cases peaked in mid-October 2017, which corresponded to DHS’ lowest caseload performance during the six-month period.
Point in Time Caseload Data
According to the point in time (PIT) data from the end of this report period, DHS reports that 70.5 percent of all caseworkers met the established standard on December 31, 2017. When compared to the PIT data at the end of the last report period, DHS’ compliance decreased by 9.6 percent from 80.1 percent.
On December 31, 2017, caseload compliance by worker type varied, as detailed in Table 3 below. Recruitment workers maintained the highest caseload compliance (94.7 percent), while ATU workers maintained the lowest (42.7 percent).

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Table 3: Caseload Compliance by Worker Type – December 31, 2017

WORKER TYPE
INVESTIGATION PERMANENCY PLANNING PREVENTIVE / VOLUNTARY FOSTER CARE / ADOPTION ATU RECRUITMENT TOTAL

MET
259 514 56 216 16 36 1097

TOTAL
411 725 83 260 38 38 1555

% MEETING
63.0% 70.9% 67.5% 83.1% 42.1% 94.7% 70.5%

Causes of Decline in Caseload Compliance this Period Rise in Investigative Cases

During this period, DHS’ data showed a marked increase in the number of accepted investigations compared to last period. In October 2017, caseworkers were responsible for 1,379 more investigations than at the end of June 2017. This reflects a nearly 30 percent increase in CPS cases in just over three months. This substantial increase in investigative cases placed tremendous pressure on caseworkers who were assigned many more cases to investigate. For example, caseworkers in Oklahoma City were responsible for 484 more investigations in October than in June, and Tulsa caseworkers had 237 more investigations added to their caseloads.

Figure 11 : Investigative Cases, June 2017 to December 2017

6,500 6,000 5,500 5,000

4,742 4,725

5,334

6,089

6,121

5,659

4,938

4,500

4,000

3,500

3,000 June 2017 July 2017 Aug 2017 Sept 2017 Oct 2017 Nov 2017 Dec 2017 Source: DHS Data

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The increase in investigations resulted in a drop in caseload compliance. In October 2017, only 65 percent of caseworkers met the caseload standard, a drop of 15 percentage points from June 2017. Some workers and districts experienced the rise in workload even more acutely. For example, caseload compliance for investigators fell from 72 percent compliance in June 2017 to just over half (51 percent) of investigators meeting the standard on October 17, 2017. By the end of the reporting period, DHS’ efforts through the implementation of its WIP reversed these troubling trends and positioned the agency to make gains again.
At the end of the report period, DHS reported having onboard 1,695 case carrying staff, including 1,555 who were managing at least one case. Of the remaining 140 caseworkers not carrying a case, 105 were still early in their training and not yet eligible to receive case assignments. This is the largest reported increase of caseworkers on board, but not yet eligible to carry cases, since March 30, 2016, when there were 135 new caseworkers in this status. The increase in the number of new staff between periods demonstrates that DHS continued to hire and move new caseworkers through the pre-service training program.
DHS reported that despite its hiring to backfill positions, the department experienced a net loss of staff due to turnover. Since June 28, 2017, the total number of caseworkers statewide decreased by 43 from 1,738 to 1,695 caseworkers as of December 31, 2017. Further, the number of case-carrying staff decreased by 66, from 1,621 last period to 1,555 this period. The result of DHS’ staff attrition was a loss in the total case carrying capacity of all caseworkers on board for the period.
Workload Performance Improvement Plan
DHS developed and implemented its WIP, effective October 31, 2017, to respond to the increase in the investigative caseload and the simultaneous net decrease in the number of caseload carrying staff. (See Appendix C) In its plan, DHS articulated:
“An increase in the number of overdue investigations and assessments combined with an increase in the overall number of pending, is an indication that if we do not make adjustments quickly, we will lose the workforce stability we’ve diligently worked to achieve. Therefore, in addition to expediting recruitment, hiring and onboarding efforts to ensure the right number of staff are in place, immediate adjustments in workload distribution are required to stabilize the workforce.”
The plan consists of the following three primary strategies to increase workload capacity:
1. Adjustment to graduated workload standard. DHS implemented graduated caseloads in 2015 as a central strategy to increase retention of new workers. The original commitment was to assign new caseworkers, after finishing CORE training, 25 percent of
44

a caseload for the first three months on the job. Subsequently, at six months, a worker is assigned a 50 percent workload and at nine months, a full caseload of 100 percent. DHS effectively implemented graduated caseloads and protected most of its new workers from being assigned a full caseload prior to nine months on the job. For example, last period, 91 percent of caseworkers eligible for graduated caseloads met their 25 or 50 percent caseload standard.
To increase workload capacity, DHS modified the graduated workload standards from 25 to 50 percent of a workload for the first three months, and at six months, from 50 to 75 percent of a workload. DHS reported by increasing graduated caseload assignments, the department would have greater workload capacity. DHS instructed supervisors to give careful consideration to new workers’ individual skill level and development when making graduated caseload assignments as some new caseworkers may need to start with a lighter workload.
DHS leadership and the Co-Neutrals separately received extensive feedback from workers in the field that the original 25 percent graduated caseload for new workers was often not demanding enough, while the subsequent jump from 50 to 100 percent of a caseload at nine months was too much of an increase for some new workers to manage effectively. On December 31, 2017, using the new graduated caseload assignments, DHS reported that 97 percent of staff eligible to carry a graduated caseload met the standard. Effective February 16, 2018, DHS made permanent the modified graduated caseload methodology.
2. Adjustment to workload standard. For the 11 districts that did not have the workforce capacity to meet their total assigned workload as of October 30, 2017, DHS temporarily revised their workload target and allowed supervisors to increase the number of cases both investigators and permanency workers could carry to distribute the burgeoning workload more evenly. DHS leadership temporarily allowed for permanency workers to be assigned an additional three children (18 children total) and CPS investigators to be assigned an additional two cases (14 cases total).21
3. Overtime plans. For those districts with the highest number of investigations and assessments in backlog status, DHS utilized overtime plans to increase workforce capacity.
21 The revised workload standard is used only by DHS as an internal management strategy for those districts that do not have a sufficient workforce to meet their total workload. DHS continues to report caseload compliance to the Co-Neutrals using the original caseload standards, which have not changed.
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Initial Progress after WIP Implementation
Following the implementation of the WIP in late October 2017, DHS’ data at the end of the period indicates improvement in these areas:
1. Increased number of caseworkers meeting the caseload standard. At the end of June 2017, 80.1 percent of caseworkers met the caseload standard. By the middle of the current period, only 65 percent of workers met the standard. During November and December 2017, the percent of caseworkers meeting the caseload standard steadily increased. The average caseload compliance for November 2017 was 68.6 percent and for December 2017 was 69.3 percent. By the end of December 2017, 63 additional workers were meeting the caseload standard when compared to October 1, 2017.
2. Rise in total workforce capacity. At the end of June 2017, DHS reported a total workforce capacity of 1,525. By mid-October 2017, total workforce capacity had dropped to 1,449, representing a deficit against the 1,507 total workload assignments. During November and December 2017, total workforce capacity progressively increased and by December 31, 2017, reached 1,495.
3. Reduction in CPS investigative cases. During the period, DHS significantly reduced the total number of investigative cases assigned to caseworkers. At the end of the period, DHS reported 4,938 investigative cases, a nearly 20 percent drop in cases from midperiod when the total number of investigative cases exceeded 6,000. At the close of last period, DHS reported 349 cases in its backlog. During the current period, the backlog had reached over 800 overdue investigations. At the end of December 2017, DHS’ data showed 618 cases in overdue, backlog status.
4. Drop in the number of caseworkers carrying a caseload over 200 percent. During the first half of the current period, the number of caseworkers with a caseload over 200 percent of their respective standard more than tripled from 18 caseworkers in July 2017 to 65 in October 2017. On December 31, 2017, DHS reported only 14 caseworkers with a caseload over 200 percent, a nearly 80 percent reduction from October 2017.
These improvements reversed worsening trend lines on key caseload indicators and averted a more significant downturn in DHS’ caseload performance for this period.
Workload and Hiring Plan
In March 2018, DHS began implementation of a statewide Workload and Hiring Plan that establishes the roadmap for DHS to achieve its caseload Target Outcomes this year. (See
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Appendix D) The plan consists of a hiring strategy to bring onboard by December 31, 2018, 547 new staff across DHS’ 27 districts and foster care and adoption units. Of these 547 positions, DHS reports 276 are positions currently vacant and the remaining 271 positions will need to be backfilled due to DHS turnover estimates. To establish its hiring plan, DHS used historical workload data to project, by district, the number of staff needed not only to meet, but exceed, total workload assigned. In its plan, DHS stated, “…DHS must ensure it has adequate staff hired and able to carry cases so that the capacity is greater than the workload.”
A review of DHS’ data at the end of this period shows that 21 of the 29 child welfare districts in Oklahoma had the capacity to either meet or exceed their total workload, without accounting for projected attrition, while eight districts did not have sufficient caseworker staffing capacity to meet their total workload. Of the eight districts that did not have the caseworker staffing capacity to meet their total workload, three districts required three or fewer additional workers to meet their total workload. DHS’ hiring plan includes hiring a sufficient number of additional staff for each of these eight districts to exceed their current total workload.
While most districts had the capacity to meet or exceed their total workload at the end of the period, DHS’ data shows that the majority of districts (72 percent or 21 out of the 29 districts) did not meet 90 percent caseload compliance on December 31, 2017.22 The disparity between these two data points (most districts have either the capacity to meet or exceed their workload and most districts’ caseworkers did not meet the caseload standard) reflects the reality that while a district may have enough staff to meet its total workload, the distribution of work in a district between the types of workers and types of cases assigned often do not align. These realities support DHS’ commitment to hire a sufficient number of staff to exceed a district’s total workload in order for districts to be able to effectively respond to the daily fluctuations in the type, volume and special characteristics of a district’s total workload.
22 Of the 21 districts where caseworkers did not meet 90 percent caseload compliance, six districts’ caseworkers had between 80 and 89 percent compliance; seven districts between 60 and 79 percent compliance; and the remaining eight districts’ caseworkers had below 60 percent caseload compliance. It is important to highlight that while a district’s caseworkers may not collectively meet 90 percent caseload compliance, some of that district’s caseworkers may carry caseloads in compliance. For example, District 17 reported 75 percent caseload compliance on December 31, 2017. While this district did not meet the 90 percent standard, 21 of the district’s 28 caseworkers’ caseloads met the standard.
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Figure 12 : District Capacity to Cover Workload and Caseload Compliance23

District
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Adoption Foster Care STATE

Capacity to Cover
Workload 145% 137% 119% 102% 121% 87% 105% 86% 135% 66% 134% 130% 110% 81% 138% 154% 122% 111% 110% 92% 93% 144% 137% 122% 98% 91% 109% 146% 115% 109%

Capacity to Cover
Workload Y Y Y Y Y N Y N Y N Y Y Y N Y Y Y Y Y N N Y Y Y N N Y Y Y Y

90% of Workers Meeting Std.
Y N N N N N N N Y N Y N N N Y Y N N N N N Y Y Y N N N N N N

% of Workers Meeting Std.
100% 89% 82% 61% 80% 43% 71% 38% 93% 50% 95% 86% 67% 35% 93% 96% 75% 82% 74% 48% 55% 100% 92% 93% 50% 37% 66% 72% 83% 70.5%

23 In the Figure, a district shaded yellow means that the district has the workforce capacity to meet its total workload, however, has less than 90 percent of its caseworkers meeting the caseload standard; a district shaded red means that the district does not have the workforce capacity to meet its total workload and less than 90 percent of its caseworkers are meeting the caseload standard; and a district shaded green means that the district has the capacity to meet its total workload and at least 90 percent of its caseworkers are meeting the caseload standard.
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Of the 21 districts not meeting 90 percent caseload compliance at the end of the period, seven districts reported having 50 percent or fewer caseworkers meeting the caseload standard. For these districts, many of which have persistently struggled with low caseload compliance, DHS must be particularly focused in its efforts to improve caseload compliance. In its hiring plan, DHS identified most of these seven districts as requiring greater managerial attention to fill their vacant positions, which has been a challenge noted by DHS.
Included in DHS’ Workload and Hiring Plan is an individual plan for each region, and its districts, to accomplish each district’s specific hiring and retention goals by December 31, 2018. The plans set forth a diverse set of strategies unique to specific regional/district needs, which include strengthening tracking, monitoring and managing of caseloads; improving the selection process to ensure the right candidates are hired; and, supporting caseworkers through improved mechanisms for staff to provide feedback. For many of the seven districts with 50 percent or fewer caseworkers meeting the caseload standard, regional plans include strategies to leverage personnel among better-staffed districts and these under-staffed districts to maximize staffing and case assignments.
The last component of DHS’ Workload and Hiring Plan involves a commitment to reduce the percent of staff carrying excessively large caseloads. DHS has committed to:
x By July 1, 2018, no staff will have a caseload that exceeds 200 percent of standard; x By October 1, 2018, no staff will have a caseload that exceeds 175 percent of standard;
and, x By December 31, 2018, no staff will have a caseload that exceeds 150 percent of
standard.
As noted above, by the end of December 2017, 14 of 1,555 caseworkers carrying at least one case had a caseload that exceeded 200 percent of standard, bringing within reach DHS’ first goal of eliminating its largest caseloads. The Co-Neutrals will closely monitor DHS’ implementation of its Workload and Hiring Plan and continue to assess the Department’s efforts to make meaningful gains in caseload compliance.
Performance Standards and Target Outcomes – Supervisor Workloads
DHS understands that strong supervisory support for caseworkers, especially new caseworkers, is essential to supporting effective and consistent child welfare practice and positive outcomes for children and families. DHS committed to meet the same final Target Outcome for supervisor workloads as it did for caseloads: 90 percent of supervisors meeting the 1:5 caseworker ratio.
As of December 31, 2017, DHS’ data showed that 84.6 percent of supervisors met the 1:5 workload standard, compared to 83.5 percent on June 28, 2017. As the chart below shows,
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over this reform effort, DHS has made substantial and sustained progress from the baseline toward the Target Outcome.
Figure 13: Supervisor Workloads: Percent of Supervisors Meeting Workload Standards

100.0% 90.0% 80.0% 70.0% 60.0%

90.0% 79.8% 81.3% 85.3% 83.5% 84.6% 75.1% 70.9% 58.8%

50.0%

40.0%

30.0%

20.0%

10.0%

0.0% Jul-14 Jan-15 Jul-15 Jan-16 Jul-16 Jan-17 Jul-17 Jan-18 Target

Source: DHS Data

DHS reported a slight, positive decline in the number of supervisors who are assigned and manage their own cases. Child welfare cases managed by supervisors carry the same case weight as the cases managed by caseworkers and are calculated into each supervisor’s workload ratio. As of December 31, 2017, 21 supervisors carried more than two cases, a slight worsening from the 15 supervisors who carried more than two cases on June 28, 2017.
For this report period, the Co-Neutrals again find that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for meeting supervisor workload standards.

D. Shelter Use
DHS has made important strides toward its goal of eliminating shelter care for the youngest children in DHS custody. For the third consecutive period, no child, ages one year or younger, experienced a shelter stay, and only four children between the ages of two and five experienced a shelter stay this report period. Oklahoma has become rooted in a case practice that ensures, except in the rarest of circumstances, that the youngest children in DHS’ custody are not placed in shelters. The Co-Neutrals find DHS made good faith efforts during this period
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to achieve substantial and sustained progress toward the shelter Target Outcomes for Metrics 5.1 (children ages 0 to 1 years old) and 5.2 (children ages 2 to 5 years old).
DHS has not achieved this critical progress for children six years of age and older who continue to be placed too often in shelters across Oklahoma. For children in this age group, particularly those with behavioral, developmental, and/or mental health issues, shelter care is sometimes, still, the only placement option. As the Co-Neutrals have highlighted in multiple prior Commentaries, the significant lack of placement options for children with specialized needs has perpetuated DHS’ ongoing reliance on shelter care.
In addition to the lack of placement options for children who experienced a shelter stay this period, DHS’ efforts to prevent shelter placements and to reduce the length of time children remain in shelters were not adequate during this period. In particular, DHS’ principal practice to expedite children’s exit from shelters to needs-based placements lacked sufficient leadership oversight and guidance to ensure the practice urgently and effectively identified and secured appropriate placements for children outside of a shelter. DHS leadership acknowledged that the intensity of its practice of reviewing every shelter placement request to ensure that all potential family-based placements had been exhausted before a child enters a shelter had waned. This is evident by DHS’ own findings on a sample review of shelter authorizations during the months of October and November 2017.
For this period, DHS reported a nearly 30 percent increase in the number of shelter nights children ages six to twelve experienced. This represents the third consecutive period of increased shelter nights for this age group. While the number of shelter nights children 13 and older experienced declined modestly this period relative to last period, the number of shelternights older youth experienced this period far exceeded the Target Outcome DHS committed to of 8,850 nights by June 30, 2016. In addition, for those youth who did experience a shelter stay, an increased percentage experienced more than 30 shelter nights and/or more than one shelter stay when compared to the last report period. The Co-Neutrals do not find that DHS made good faith efforts during this period to achieve substantial and sustained progress toward the shelter Target Outcomes for Metrics 5.3 and 5.4, which measure the number of nights children ages six and older spent in shelters and Pinnacle Plan 1.17, which captures in greater detail the number of older youth who experienced more than 30 nights in a shelter and/or multiple shelter stays during the period.
The majority of children who experience shelter care in Oklahoma are placed at Youth Service Agency (YSA) shelters. During the current report period, maltreatment at these shelters increased. During the last report period, a total of four children were maltreated in YSA
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shelters, as reflected in two substantiated referrals, while during this report period, 11 children were maltreated in YSA shelters, as reflected in six substantiated referrals. The high incidence of maltreatment in shelters is concerning and demands DHS’ urgent attention to resolve. It also underscores the inherent challenges related to shelter care, which involves placing numerous children in one space together with diverse needs, ages, and sexes. Understanding the risks related to shelter care, it is incumbent upon DHS to effectively employ its resources, with a sense of urgency, to substantially and sustainably reduce the shelter population in Oklahoma. Performance Standards
DHS committed that it would “ensure all children are cared for in family-like settings” and “stop its use of temporary placement in shelters for all children under 13 years of age.” In the Metrics Plan, the Co-Neutrals selected the number of “child-nights” spent in shelters as the measure to assess Oklahoma’s progress in eliminating and reducing shelter use. One “childnight” is defined as “one child in a shelter at midnight.” The total number of child-nights is calculated by summing the number of children in shelters at midnight for each night of the reporting period. The Pinnacle Plan includes an exception for shelter placement if the child is part of a sibling set of four or more being placed together. The Co-Neutrals have also allowed for the exception to place a minor parent with their child if necessary to keep the parent and child together (note that the child must, in fact, be placed with their minor parent).24 However, while the Co-Neutrals approved these exceptions, they are not automatic. For each child or youth in need of placement, DHS has committed to undertake reasonable efforts to place the child in a family-like setting, regardless of whether the child meets an exception. Performance for Children under Age Six, Shelter Metrics 5.1 and 5.2 For the third consecutive period, DHS has achieved the Target Outcome of zero child-nights in shelters for children under two years of age. DHS has successfully eliminated shelter care for this youngest cohort of children from its baseline of 2,923 child-nights to zero for the third consecutive report period.
24 Children who meet the criteria for one of the two exceptions are included in the shelter outcomes data.
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Figure 14: Metrics 5.1 – Shelter-Nights, Children Ages 0 - 1

3,500 3,000

2,923

2,500

2,000

1,500

1,000 500 0

843
190
Baseline Jan - 14 Jul - 14 Jan-June
2012

505 624
Jan - 15 Jul - 15

189
Jan - 16

2

0

Jul - 16 Jan - 17

0

0

Jul-17 Jan-18

Source: DHS Data

For children ages two to five, the original baseline recorded was 8,853 child-nights, and DHS’ most recent data shows that while DHS did not meet the Target Outcome of zero-child nights for this age group, DHS remains close to meeting this Target Outcome. For this period, July 1, 2017 to December 31, 2017, four children spent a combined total of 130 nights in a shelter. In comparison to the last report period, DHS’ data shows one fewer child experienced a shelter stay this period. The data also shows an increase this period in the total number of shelternights children this age group experienced, going from 75 nights last period to 130 shelter nights this period.

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Figure 15: Metric 5.2 – Shelter-Nights, Children Ages 2 – 5

10,000
8,853
9,000

8,000

7,000

6,000

5,000

4,357

4,000 3,000 2,000

2,689

2,080

2,275

1,340

1,000 0

Baseline Jan - 14 Jan-June
2012

Jul - 14

Jan - 15

Jul - 15

Jan - 16

137
Jul - 16

7

75 130

Jan - 17 Jul-17 Jan-18 Source: DHS Data

Shelter Metric 5.3 – Children Ages Six to 12
For children ages six to 12, DHS reports this period an increase in the number of child-nights experienced by this age group. This period, DHS reported 8,002 child-nights compared to 6,232 during the previous six-month period. These shelter nights represent 163 unique children, which is 13 more children than DHS reported spent a night in a shelter last period. As the Figure below presents, this is the third consecutive period the number of child-nights has increased for this age group. In particular, children ages six to 12 experienced a concerning 92 percent increase in child-nights since July 2016 when DHS achieved a record low number of 112 children in this age group experiencing a shelter stay.
It is important to highlight not only DHS’ commitment to achieve zero shelter nights for children under the age of 13 but also to ensure that children under 13 years old are placed in family-like settings, which includes avoiding placements for these children in group home settings or other types of institutional care, except in rare circumstances such as when a child requires hospitalization.

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Figure 16: Metric 5.3 – Shelter-Nights, Children Ages 6 – 12

25,000 20,000

23,127 22,288

20,147

18,631

15,000 10,000
5,000

13,867

10,188 4,158

5,052

6,232

8,002

0

Baseline Jan - 14 Jul - 14 Jan - 15 Jul - 15 Jan - 16 Jul - 16 Jan - 17 Jul-17 Jan-18

Jan-June

2012

Source: DHS Data

Shelter Metric 5.4 and Pinnacle Plan Commitment 1.17 – Youth 13 and Older
Neither DHS’ Pinnacle Plan nor the Compromise and Settlement Agreement require that emergency shelter usage for children 13 years and older be completely eliminated. However, DHS did commit under the Pinnacle Plan (Point 1.17) that by June 30, 2014, children ages 13 and older would be placed in a shelter only if a family-like placement is not available to meet their needs; and further, DHS would not place any child over age 13 in a shelter more than one time and for no more than 30 days within a 12-month period.
For this report period, the number of unique children ages 13 and older who spent a night in a shelter decreased from 366 children in the last period to 313 children this period. DHS reported 14,000 child-nights for this oldest group of children, which represents a slight decrease from last period when DHS reported 14,893 child-nights. As shown in the Figure below, while DHS has reduced the number of child-nights for this period, the number of nights older youth experienced in a shelter this period is still 34 percent greater than in July 2016 when DHS achieved the lowest number of shelter nights for this age-group. Further, DHS has not substantially and sustainably reduced the number of shelter nights for this age-group in order to meet its commitment of 8,850 child-nights by June 30, 2016.

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Figure 17: Metric 5.4-Shelter Nights, Children Ages 13 and Older

30,000

25,000

25,342 24,935 25,108 24,552

20,635 20,000

18,277

15,000 10,000

14,893 14,000
12,048 10,478

8,850

5,000

0 Baseline Jan-14 Jul-14 Jan-15 Jul-15 Jan-16 Jul-16 Jan-17 Jul-17 Jan-18 Target
Source: DHS Data

DHS committed that by June 30, 2016, 90 percent of all children ages 13 and older who experience a shelter stay would be in compliance with Pinnacle Plan 1.17, which requires that these older youth experience no more than one shelter stay and no more than 30 shelter-nights in any 12-month period. For the period of July 1, 2017 to December 31, 2017, DHS reported that 28.1 percent (88) of the 313 children ages 13 and older with an overnight shelter stay were placed consistent with Pinnacle Plan 1.17, but 225 children were not. This represents a decline in performance from last period when DHS reported that 33.1 percent of children were compliant with Pinnacle Plan 1.17. In addition, this is the second consecutive period DHS’ performance on this measure was below the baseline of 33.7 percent of children compliant with this commitment.

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Figure 18: Pinnacle Plan 1.17 Performance

100.00% 90%
90.00%

80.00%

70.00%

60.00%

50.00%

40.00% 30.00%

33.73% 30.37% 26.53% 30.42% 34.94% 33.06% 28.12%

20.00%

10.00%

0.00% Jan-15 Jul-15 Jan-16 Jul-16 Dec-16 Jul-17 Jan-18 Target

Source: DHS Data

Reducing Shelter Usage for Children

While DHS’ performance this period for children ages six to 12 years old reflects an increase in shelter usage, DHS has significantly reduced shelter usage for children of all ages in Oklahoma over the past four years. The primary two practices DHS has utilized to effectively reduce shelter care are: multidisciplinary staffings to expeditiously identify needs-based placements for children in shelters and a heightened review process by leadership to ensure for each child placed in a shelter an exhaustive search is undertaken to identify a needs-based placement in lieu of shelter care.

Table 4: Child-Nights in Shelters by Age, January 2017 to December 2017

Child-Nights in Shelters by Age
0 to 1 2 to 5 6 to 12 13 & Older TOTAL

Baseline (Jan 2012June 2013)
2,923 8,853 20,147 20,635 52,558

Performance (July 2017- December
2017) 0
130 8,002 14,000 22,132

Change (N)
-2,923 -8,723 -12,145 -6,635 -30,426

Change (%)
-100.0% -98.5% -60.3% -32.2% -58%

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The progress DHS has made toward reducing shelter usage during this reform most markedly materialized during the period of January 1, 2016 to June 30, 2016 when DHS successfully reduced the total number of children using shelter care to 382 children down from 1,212 children eighteen months prior. Since June 30, 2016, DHS has not made or sustained further reductions in shelter usage for children six years of age and older, as the chart below illustrates.
Figure 19: Number of Unique Children Six Years and Older, July 2016 to January 2018

600

516

500

453

476

400

376

300

200

100

0 Jul - 16

Jan - 17

Jul-17

Jan-18 Source: DHS Data

As discussed above, the greatest challenge to DHS’ ability to meet its commitment to eliminate shelter care for children 12 years of age and younger and significantly reduce shelter care for youth 13 years of age and older is the extreme lack of available needs-based placements for children with increased behavioral, mental or developmental needs. Until DHS effectively develops and retains an adequate placement continuum that is able to serve the diverse needs of children in DHS custody, DHS will continue to struggle to reduce shelter care in Oklahoma as envisioned by the CSA.
Since this placement continuum does not yet exist, DHS developed the two primary practices described above to ensure that children are only placed in shelters if there is no other placement available and, if placed, that efforts begin immediately to identify and secure a placement outside a shelter, preferably in a family-based placement, if appropriate. However, during this period, DHS’ implementation of these practices lacked the necessary level of focus and rigor to ensure DHS was effectively preventing unnecessary shelter placements and reducing the length of time children were placed in shelters.

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Preventing Shelter Placements
In February 2014, DHS heightened oversight and accountability of shelter placements by requiring that for children less than 13 years of age all shelter authorizations must be approved by the CWS Director and for children 13 years of age or older, shelter authorization must be approved by the regional deputy director. In order to approve a child’s placement in a shelter, the CWS Director or a regional deputy director, as appropriate, is responsible for ensuring all necessary efforts to identify and secure a needs-based placement for a child were completed and documented on a pre-authorization form prior to shelter admission.
During this report period, DHS leadership acknowledged that the department had reduced its focus and attention on the shelter authorization process and this was evident, according to DHS, by a decline in the diligent efforts to prevent shelter placement documented by caseworkers on pre-authorization forms. DHS’ March 2018 analysis of the shelter authorization process identified similar concerns. The analysis, which focused on a review of 184 children who were placed in shelter care at Laura Dester and YSA shelters during the months of October and November 2017, found that some pre-authorization forms presented sufficient efforts to prevent a shelter placement, while other authorization forms were approved despite a lack of information to demonstrate thorough efforts to divert the shelter placement.
In its analysis, DHS acknowledged that over time leadership had become aware that the preauthorization form “did not lend itself to prompting the necessary guidance to ensure all appropriate levels of care are assessed prior to a shelter placement request.” It is not clear when DHS learned that the form insufficiently guided caseworkers on the actions they must take to identify a needs-based placement for a child to prevent shelter care. However, in March 2018, following the close of this period, DHS revised its pre-authorization form to address these identified concerns. In addition, the revised form includes new prompts about the child’s functioning, placement history, and specific needs in order to best facilitate securing a needs-based placement for a child. The analysis also recommended that the department enhance accountability at the regional deputy director level to ensure that DHS is only admitting children to shelters after all appropriate efforts are attempted to identity a family or alternate needs-based placement. The Co-Neutrals strongly encourage DHS to follow through on this recommendation immediately. DHS must establish consistent accountability to ensure that children are only placed in shelters after it has been conclusively determined that there is no other safe, needs-based placement option for a child.
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Reducing Shelter Stays
In 2015, DHS implemented multi-disciplinary staffings as its primary strategy to fulfill its commitment to close the two state-operated shelters, Pauline E. Mayer and Laura Dester. Through these staffings and other efforts, DHS successfully closed Pauline E. Mayer, and significantly reduced the population of children at Laura Dester to nine in 2016. In February 2016, DHS expanded the staffing model to include children placed at the YSA shelters. The staffings were led by a shelter lead, “…whose sole responsibility is to eliminate shelter usage for children under the age of 12 by SFY16 and to significantly reduce shelter care for children 13 and over by reserving use only for circumstances in which a family-like setting cannot be obtained,” and included a team of multidisciplinary specialists from within and outside of DHS, including from foster care, TFC, legal services and developmental disabilities, among others.
In the latter half of 2016, following DHS’ significant reduction in statewide shelter usage, DHS made the decision to re-structure multi-disciplinary staffings. DHS reported that due to the decrease in shelter utilization and to ensure the sustainability of the staffings, it was appropriate to transition the centralized, statewide staffings to regional staffings. DHS reported each region was assigned a specific person to lead staffing efforts and this individual was provided a staffing tool to facilitate staffings and was offered ongoing consultation from the state office shelter staffing team.
Following the shift to the regional model, DHS reported that the transition to the new model had impacted the effectiveness of the staffings. As with any new practice, the new regional teams needed to build expertise and establish protocols to guide their staffing efforts. In April 2017, in response to DHS’ acknowledgement that the new staffing model was not yet producing the intended outcomes, the Co-Neutrals reported that they would review, during the subsequent period (January 2017-June 2017), DHS’ efforts to transfer to the regional offices the skill set and accountability to effectively and expeditiously move children out of shelters and into needs-based placements.
In response, last period DHS designated a full-time program field representative (PFR) position to lead DHS’ multidisciplinary staffing efforts after the previous statewide shelter lead was assigned expanded responsibilities in another significant area of DHS’ reform effort. In particular, the new lead for multidisciplinary staffings was to provide expertise and support to regional leads to strengthen the capacity of the regions to effectively conduct these staffings. Unfortunately, due to the pronounced challenges of securing placements for children placed at Laura Dester, the majority of the lead’s efforts during the current period were focused on Laura Dester, resulting in a lack of support and guidance to the regions. This is particularly concerning
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because most children in shelter care are not placed at Laura Dester, but at YSA shelters across the state. For these children, the regional staffings are the primary mechanism by which these children are staffed to find placements outside of the shelters.
During the current period, through discussions with DHS, it was apparent to the Co-Neutrals that regional and shelter leads needed greater support to improve the quality and outcomes of regional staffings to move children out of YSA shelters more quickly. Specifically, DHS had not developed a systemic approach among the five regions to establish clear expectations of, and accountability for, staffings and their outcomes. After this discussion, DHS committed to develop tools and guidance for the regional shelter leads to ensure that regions develop the knowledge and skills necessary to conduct staffings effectively. Following the close of this reporting period, DHS developed a uniform Progressive Shelter Staffing Form and Action Plan to be utilized by each regional lead during each child’s shelter staffing with an expected start date of March 1, 2018. In addition, DHS developed an Enhanced Shelter Reduction Plan which consists of uniform shelter staffing protocols to be implemented statewide during next period. Within this report period, DHS did not establish the necessary protocols to ensure regional staffings were performed effectively to more expeditiously exit children from shelters.
Needs-based Placements for Children in Shelters
During this report period, a total of 480 children experienced shelter care. For these children, DHS was unable to identify and secure a needs-based placement, which resulted in shelter placement. As the Table below shows, the majority of children who experienced shelter care this period were placed at YSA shelters across Oklahoma. The population of children served in YSA shelters often present with increased emotional and/or behavioral needs and the great majority of children (88 percent) placed at YSA shelters are teenagers, for whom DHS has faced significant challenges to identify foster homes willing to accept their placement.
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Table 5: Unique Children by Shelter, July 1, 2017 to December 31, 2017

Age Group

Total Unique Children

Shelter

Youth Services Shelters

Laura Dester

% Youth Services Shelters

% Laura Dester

Age 0-1

0

0

0

0%

0%

Age 2-5

4

4

1

100%

25%

Age 6-12

163

106

68

65%

42%

Age 13+

313

275

76

88%

24%

Total

480

385

Children

145

80%

30%

Note: Children who stayed in more than one shelter category were counted for each category.

Because of this, not all percentages add up to 100.

Central to DHS’ efforts to reduce shelter care must be a concerted focus to develop and expand its placement continuum to meet the needs of children who are placed in shelters, including traditional and TFC foster homes, as well as higher-level, specialized placements. DHS’ March 2018 Shelter Authorization Analysis, referenced earlier in this section, collected data on some of the primary characteristics of children who are typically placed in shelters to inform DHS’ efforts to build an adequate continuum of care. The findings of this analysis clearly show that the population of children served in shelters has significant needs, as evidenced by developmental disabilities, aggressive/violent behavior, mental health diagnoses, placement disruptions and prior inpatient stays. The analysis also highlights the significant dearth of placement options for this population of children. Of the 184 children in the review sample, 24 percent (44 children) of the children’s placements prior to the reviewed shelter placement were in another shelter. This represented the largest prior placement of the sample. The review also looked at children’s placement following the reviewed shelter placement. Nine percent of children (17) moved from the reviewed shelter placement to another shelter. This means that over a quarter (61 out of 184 children) experienced two consecutive shelter stays.25

After the close of this report period, DHS reported to the Co-Neutrals some of its efforts to expand its placement continuum as part of it plan to close the Laura Dester shelter. These efforts included the development of four new level E group homes to serve a maximum of 60 children. In addition, DHS has issued a Request for Proposal (RFP) for a 16-24 bed Intermediate

25 Of the 61 children who experienced shelter to shelter placements, DHS’ analysis did not identify if any of these children are duplicates, in that they experienced a shelter placement before and after the shelter placement under review.
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Care Facility for Individuals with Intellectual Disabilities (ICF/IID). DHS plans to re-purpose Laura Dester and allow the provider selected through this RFP to serve children who are dually diagnosed with developmental and emotional challenges. As noted in the foster care section, DHS also is partnering with Developmental Disabilities Services (DDS) to expand family-based placements for children with developmental disabilities.
In the next Commentary, the Co-Neutrals will assess DHS’ ongoing efforts and activities to strengthen its practices to prevent unnecessary shelter placements and to reduce the length of time children spend in shelters. The Co-Neutrals will also closely monitor DHS’ efforts to substantially and sustainably reduce the number of children six years of age and older who use shelter care. Lastly, the Co-Neutrals strongly advise that DHS take all steps necessary to ensure the safety of children placed in shelters.
E. Child Maltreatment in Care
Children in DHS custody continue to experience abuse and neglect at an alarmingly high rate in both foster homes and institutional settings. During this report period, which covers the data reporting period of October 1, 2016 to September 30, 2017, DHS did not reduce the number of children in DHS custody who were abused and neglected when compared to the last report period. The agency’s wanting efforts during and following the period, as discussed in this section, do not bode well for substantial and sustained gains in child safety in the near term. The department’s inadequate efforts, contributing to the high incidence of child maltreatment, raise serious concerns for child safety.
In August 2015, DHS developed and began implementation of a set of core strategies it designed to reduce the prevalence of abuse and neglect among children in DHS custody. DHS devised these strategies to address recurrent concerns surfaced in the Co-Neutrals’ first maltreatment in care (MIC) case record review, which included a comprehensive analysis of all investigations substantiated for child maltreatment in foster homes and institutional settings for the period of October 1, 2013 to September 31, 2014. For this Commentary, the Co-Neutrals focused their record review on all substantiated child maltreatment investigations that closed between July and December 2017 involving children placed in foster homes and institutional settings.26 The review identified a prevalence of the very same areas of concern surfaced in the Co-Neutrals’ first case record review.
26 Through previous Commentaries, the Co-Neutrals have discussed their findings from four MIC case record reviews covering substantiated cases in foster homes and institutional settings from October 2013 through June 2017.
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With respect to child maltreatment in foster homes, the Co-Neutrals have determined that during the current report period DHS did not make good faith efforts to achieve substantial and sustained progress in preventing child maltreatment. In particular, based on discussions with DHS leadership, document reviews and field observations, the Co-Neutrals assess that DHS did not transfer in a timely and thoughtful manner many of the findings from its ongoing, monthly reviews of maltreatment substantiations to caseworker practice, training, support and guidance. The Co-Neutrals observed that while caseworkers consistently performed the case practices contained in the MIC core strategies, critical deficiencies recurred in the execution and quality of these practices, substantially weakening DHS’ efforts to prevent the maltreatment of children in the state’s custody. The Co-Neutrals’ and DHS’ MIC case reviews repeatedly, across more than two years, identified that warning signs of child abuse and neglect, or risks of the same, are often reported and visible to the agency well before DHS confirms a child is a victim of maltreatment. In too many instances, the agency’s efforts did not include prompt, appropriate action when these signs were first identified and documented by DHS. Those lapses and a lack of appropriate, effective ongoing guidance from DHS leadership to caseworkers and supervisors implementing the MIC core strategies led to a less than effective statewide implementation of the core strategies and continued to expose children to an unreasonable risk of harm in foster homes.
In the area of institutional settings, DHS’ pledge to heighten its monitoring and oversight of facilities with identified safety concerns did not result consistently in timely and sustainable resolution of identified safety concerns. Of the eight group homes and shelters subject to heightened monitoring during the current period, four facilities received more than one maltreatment substantiation following the initiation of heightened monitoring. For this report period, three group homes each had at least four substantiations after DHS initiated intensified oversight of the facility, which resulted in the maltreatment of 23 children. In the six months following the close of the current period (October 2017 to March 2018), five additional children were maltreated at two of these three group homes. The repeated incidence of child maltreatment at facilities subject to DHS’ heightened oversight raises questions about DHS’ ability to address and resolve persistent safety risks at some of these facilities. This was particularly evident at the state-operated Laura Dester shelter, where serious safety concerns long went unresolved and contributed to the abuse or neglect of four children during the current period, and thirteen children during the next period.27
27 Three children are included in both report periods, as the report periods overlap. The total number of unique children maltreated during the combined two report periods (October 2016 to March 2018) is 14.
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Achieving a substantial and sustained reduction in the rate of maltreatment of children in the state’s custody is the department’s most imperative work. For this reporting period, DHS’ performance declined on both of the two metrics (1.1: MIC by a resource caregiver and 1.2: MIC by a parent) established to measure child safety. DHS did not make substantial and sustained progress toward the Target Outcomes in the current period and preliminary data for the next report period, April 2017 to March 2018, indicates that DHS’ performance does not appear to show improvement in child safety under Measure 1.1 (MIC by a resource caregiver). For the reasons discussed in this section, the Co-Neutrals do not find that DHS made good faith efforts during this period to achieve substantial and sustained progress toward the MIC Target Outcomes.
Child Safety: Abuse and Neglect by Resource Caregivers While Child is in the Legal Custody of DHS, Metric 1a
DHS tracks and reports publicly on a monthly basis the number of children abused or neglected by a resource caregiver. DHS and the Co-Neutrals adopted the federal metric applicable at the time, “Absence of Child Abuse and/or Neglect in Foster Care,” which reports the percent of all children in foster care during a 12-month period who were not victims of substantiated maltreatment by a foster parent or facility staff. 28
For this metric’s current report period, October 1, 2016 to September 30, 2017, DHS reported that 184 children out of 15,113 in DHS custody were abused or neglected while in care. This represents a rate of 98.78 percent of children in DHS custody during the period who were not victims of child maltreatment. For DHS to have met the Target Outcome of 99.68 percent of children safe in custody, DHS would have had to keep an additional 136 children safe from abuse and neglect by a resource caregiver.
As shown in the Figure below, during the baseline period, April 2013 to March 2014, DHS reported that 98.73 percent of children in DHS custody were not victims of child maltreatment and reported the same outcome of 98.73 percent during the following report period from October 2013 to September 2014. Over the six subsequent reporting periods (including the current period), DHS’ safety outcomes have not substantially or sustainably progressed toward the Target Outcome.
28 In October 2014, the federal Children’s Bureau changed the metric it uses to assess state child safety in care. The new federal metric combines maltreatment in care by resource caregivers and by parents, with some additional adjustments to the methodology. For consistency and comparability, the Co-Neutrals and DHS continue to use the two metrics and methodology originally established in the Metrics Plan.
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Figure 20: Metric 1a – Absence of Maltreatment in Care by Resource Caregivers

99.8%

99.68%

99.6%

99.4%

99.2%

99.0% 98.8% 98.6% 98.4%

98.73% 98.73% 98.62%

98.73% 98.84% 98.78% 98.64%

98.42%

98.2%

98.0%

97.8%

97.6%

Baseline Oct 13 - April 14 - Oct 14 - April 15 - Oct 15 - April 16 - Oct 16 - Target

(April 13 Sept 14 March 15 Sept 15 March 16 Sept 16 March 17 Sept 17

- March 14)

Source: DHS Data

In addition to reporting performance on this metric semi-annually, DHS publicly reports substantiations of child maltreatment monthly. Over the same 12-month period, October 1, 2016 to September 30, 2017, DHS reported 208 substantiations of child abuse and neglect by a resource caregiver. Of these, 24 substantiations are not included in the federal measure adopted by the Co-Neutrals as Metric 1a for two reasons: (1) 16 child abuse or neglect substantiations were excluded because, according to the federal methodology in place at the time the Metrics Plan was finalized, both the referral date (date when an allegation is made to DHS) and findings date (date when the case is substantiated by DHS) must exist in the same 12 month federal reporting period; and (2) eight child abuse or neglect substantiations were not counted in the federal metric because they represent multiple substantiations for the same child. The adopted federal measure only accounts for one substantiation per child within the same period. Of the 208 substantiations of maltreatment reported in the monthly data, 148 substantiations (71 percent) are for children in family-based foster care settings, while 60 substantiations (29 percent) are for children in residential facilities or higher-level institutions.
Child Safety: Abuse and Neglect by Parents While Child is in the Legal Custody of DHS, Metric 1b
The Co-Neutrals adapted the methodology utilized in the preceding section, Abuse and Neglect by Resource Caregivers, to measure abuse and neglect by parents while a child is in the legal
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custody of DHS. This includes the significant population of children who remain the legal responsibility of DHS but who reside in, or have been placed back in, their homes of origin for trial home visits. In Oklahoma, children can experience trial home visits for months, and DHS recognizes the importance of closely monitoring their safety.
This metric for “Abuse and Neglect by Parents While Child is in the Legal Custody of DHS,” measures performance this way: Of all children in the legal custody of DHS during the reporting period, the number and percent of children who were not victims of substantiated or indicated maltreatment by a parent and the number of children who were victims over the 12-month period.
For this report period, October 1, 2016 to September 30, 2017, DHS served 15,113 children in custody, 202 of whom were abused or neglected by parents while in DHS custody, yielding a safety rate of 98.66 percent against a target of 99 percent. For DHS to have reached the Target Outcome during this period, the agency would have had to prevent maltreatment to an additional 51 children. As the Figure below shows, DHS’ performance on this metric has declined over 18 months of monitoring.
Figure 21: Metric 1b – Absence of Maltreatment in Care by Parents

99.1% 99.0%

99.00%

98.9% 98.8%

98.85% 98.84% 98.79%

98.7%

98.6% 98.56%
98.5%

98.57%

98.58%

98.50%

98.44%

98.4%

98.37%

98.66%

98.3%

98.2%

98.1%

98.0%

Baseline Oct 11 Sept 12

Oct 12 Sept 13

April 13 Mar 14

Oct 13 Sept 14

April 14 Mar 15

Oct 14 - April 15 Sept 15 March 16

Oct 15 - April 16 - Oct 16 - Target Sept 16 March 17 Sept 17
Source: DHS Data

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DHS’ data showed an additional 56 substantiations of maltreatment of children by their parents while in DHS custody that were excluded in the measure because of the same federal exceptions applicable in Metric 1a: 49 are excluded because the referral date (date when an allegation is made to DHS) and findings date (date when the case is substantiated) do not exist in the same 12-month reporting period or due to multiple substantiations on the same child; and, seven are excluded for other applicable criteria.29 During this period, DHS continued to lose ground on this metric and must take urgent and appropriate actions to reverse the decline in performance in this vital area.

Comparative MIC Rates by Placement Types

The Co-Neutrals reviewed whether children are maltreated by a resource caregiver more often in certain placement types through an analysis of MIC rates for each placement type (see Table 6 below). The Co-Neutrals used the method that the United States Department of Health and Human Services Children’s Bureau adopted to measure how often MIC occurs, which calculates a rate of maltreatment based on the days children are in child welfare custody. The rate signifies, for every 100,000 days that a group of children spent in custody, the number of MIC substantiations those children experienced. In the Co-Neutrals’ analysis, lower MIC rates mean that children experienced less maltreatment by resource caregivers in that placement type, while higher rates mean children experienced more maltreatment by resource caregivers while residing in that placement type.

Table 6: Rate of MIC by Placement Type, Current and Prior Report Periods

Placement Type
Regular Foster Family Care Foster Family Care - Supported Home Kinship Foster Family Care Relative Kinship Foster Family Care Non-Relative Therapeutic Foster Family Care Congregate Care Other Foster Family Care Total

Current Period

(Oct ’16 – Sept ’17)

# of Children Maltreated

MIC Rate

33

5.38

19

3.36

73

6.48

14

4.76

7

5.08

60

27.15

2

1.1

208

6.57

Last Period

(April ’16 – March ’17)

# of Children Maltreated

MIC Rate

31

4.96

23

4.11

82

6.72

15

4.97

9

5.34

44

19.33

4

2.19

208

6.28

29 The exclusion criteria for these seven children are: three children experienced two removals during the period, and maltreatment occurred during the second removal, which according to federal rules does not then count; and four children’s first placements following removal (i.e., hospital) is not counted according to federal rules.

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The Table above shows that children in congregate care had the highest rate of maltreatment by a resource caregiver of any placement type, a rate five times higher than children placed in family-based care. Furthermore, the rate of maltreatment in congregate care settings substantially increased from last period.
Following congregate care, kinship-relative care had the second highest MIC rate30 and the greatest number of child victims of any placement type. Children placed in regular foster homes experienced the third highest MIC rate during this period. As the Table above shows, the rate of maltreatment increased in regular foster homes this period when compared to last period. Overall, the rate of maltreatment for all children in DHS custody increased when compared to the previous 12-month report period.
Core Strategies to Reduce MIC in Family-Based Placements
In August 2015, DHS began implementing a set of core strategies to improve child safety. DHS reported the strategies were intended to address the most predominant concerns identified in the Co-Neutrals’ first case record review of all MIC substantiations in foster homes between October 2013 and September 2014. The three primary concerns were:
1. Referral Histories: foster homes with extensive referral histories that contain screened out, ruled out, or unsubstantiated referrals for the same or similar abuse/neglect allegations that were eventually substantiated or that revealed patterns of concerning conditions in foster homes;
2. Quality of Visits: some caseworkers not thoroughly assessing and/or addressing child safety and caregiver discipline during monthly visits; and,
3. Home approval: foster homes with concerning child welfare, criminal or personal histories that raise questions about the safety of certain new foster homes.
As detailed in previous Commentaries, to assess DHS’ efforts to address these specific safety concerns, the Co-Neutrals, along with DHS, have continued to review the case records for every substantiated MIC allegation, as well as a sample of investigations that did not result in a substantiation. These ongoing reviews of maltreatment investigations continue to surface, even years later, the same primary issues of concern originally noted above. In fact, the review of 73
30 For the second consecutive report period, the rate of maltreatment in kinship homes has decreased, along with the number of substantiations in this placement type. However, the number of child maltreatment substantiations in kinship homes for this period has not reduced sufficiently to have a substantial, positive impact on DHS’ performance toward the MIC Target Outcome.
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substantiations in foster homes (40 unique substantiated foster homes) from July to December 2017, again showed recurrent concerns in the areas of referral histories, the quality of caseworker visits, and foster homes approved despite concerning child welfare, criminal or personal histories.
DHS committed to join the Co-Neutrals in conducting these MIC case reviews to assess the impact that implementation of the core strategies was having on child safety. The Co-Neutrals have found that DHS’ reviews of substantiated and unsubstantiated maltreatment referrals in foster homes are thorough and effectively identify case specific and larger case practice areas of concern. When safety concerns for children emerge from these reviews, the department committed to engage DHS leadership, supervisors, and caseworkers to promptly intervene and address any child-specific safety concerns, as appropriate, as well as broader case practice concerns that require attention and a plan of action in the field. Through this work, DHS has developed a robust understanding of the primary risks, system-wide, that require remediation and mitigation to reduce child maltreatment in foster homes. Unfortunately, DHS did not make good faith efforts to transfer much of its qualitative learning from the Central Office review team to frontline workers and supervisors across the enterprise. As a result, new protocols and practices, designed to improve child safety, often were not executed effectively across the state due to inadequate guidance and support to the field, and failed to reflect sufficiently DHS’ awareness of ongoing deficiencies in case practice required to keep children safe.
Safety-Focused Case Practice to Reduce Maltreatment in Foster Homes
Included in the following sections are discussions of each of the primary safety concerns that have consistently surfaced in the Co-Neutrals’ and DHS’ reviews of child maltreatment in foster homes and the efforts DHS has undertaken during the current period.
Reducing the Incidence of Foster Homes with Concerning Referral Histories
In their respective case record reviews of foster homes where maltreatment has been substantiated, the Co-Neutrals and DHS have consistently identified the existence of extensive referral histories that contain previously screened out, ruled out, or unsubstantiated allegations. These referral histories often present a pre-existing, documented pattern of safety risks to the child and overlooked concerns in the home. To address this, DHS reported it began in February 2016 to require new and heightened multi-staff joint reviews of maltreatment referrals received on children in foster homes, regardless of DHS’ decision to accept a referral for investigation. Participants in these joint reviews include the assigned permanency and resource family workers and their supervisors.
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A separate joint review follows referrals accepted for investigation, known as a “10-day staffing.” The 10-day staffing is a long-standing DHS practice in which staff are required to determine early within an investigation (within 10-days) whether the child should be removed from the home immediately and whether the home should be closed before the investigation concludes. DHS now requires that during these 10-day staffing sessions, caseworkers review the relevant foster home’s referral history in its entirety (including all screened-out, unsubstantiated and substantiated referrals) to identify any trends and/or concerns that may impact a child’s safety. At the conclusion of a 10-day staffing, the caseworkers and supervisors are required to determine what appropriate actions are necessary to mitigate any safety risks in the event a decision is made not to remove the child or close the home.
The joint review that follows DHS’ decision not to accept a maltreatment allegation for investigation is called a screen-out consultation, during which DHS requires an assessment of the foster home’s referral history and any other information that may reveal safety concerns and require follow up action by the department.
As also reported in the last Commentary, the Co-Neutrals observed in their most recent case record review that caseworkers consistently engaged in these post-referral reviews. DHS reported that its tracking data for the months of October through December 2017 showed that all required 10-day staffings were completed for all investigated referrals. In their record review, the Co-Neutrals confirmed this and found that for all substantiated referrals closed between July and December 2017, workers conducted the 10-day staffing and higher-level management approved the outcome of each staffing. For screen-out consultations, DHS reported that 89 percent were completed during the period of October through December 2017.
Despite implementation of these post-referral staffings, the quality and depth of these reviews remains a serious concern. In the most recent MIC case review, the Co-Neutrals identified that nearly half (48 percent or 19 out of 40) of the foster homes substantiated for child maltreatment had prior child maltreatment referrals (both investigated and screened-out) that appeared to signal safety concerns for the children placed in these homes. For those foster homes with referral histories, DHS’ joint reviews showed lapses in thoroughness with respect to assessing safety concerns.31 In some cases, the joint reviews did not effectively identify and/or address safety concerns which had surfaced in referrals prior to the substantiated referral. For example, based upon the referral histories of some homes, the review identified that it may have been appropriate for DHS to: remove a child from the foster home due to ongoing, safety
31 Some homes’ prior referrals were not subject to the enhanced post-referral staffings due to these referrals having been received prior to the implementation of the new staffing protocols.
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concerns; initiate a Written Plan of Compliance (WPC) to address and resolve identified safety concerns in the home; and/or, increase contacts, monitoring or services in a home to ensure child safety. However, in some cases, DHS did not take these actions and children remained in unsafe foster homes until the subsequent abuse or neglect was inflicted, reported, investigated and substantiated.
For example, in October 2017, a foster home was substantiated for the sexual abuse of two foster children who were formerly placed in the home. One year prior to this substantiation, in March 2016, a referral was called in on this foster home following the child’s first disclosure of sexual abuse by the foster father to her counselor. During this referral’s investigation, the child again disclosed sexual abuse by the foster father; however, because the child and her sister “each reported different events regarding the same time frames” DHS closed the investigation as unsubstantiated. Following the closure of the investigation, both foster children remained placed in the foster home. DHS documented that the children were “safe” in the home as a safety plan had been established that the foster father “will not be left alone with either of the children.” DHS reported that the foster mother and her adult daughter were responsible for ensuring this safety plan was enforced. However, the current, substantiated investigation found that “there is evidence to suggest [that the foster mother and her adult daughter] failed to protect [the foster children] and continued to allow [the foster father] to have contact with them.” Until this home’s closure in October 2017, DHS placed a total of ten additional children in this home, despite the department’s determination that foster children were unsafe in the care of the foster father in the home.
By way of another example, in October 2017, DHS substantiated a foster home for the sexual abuse of two siblings. This foster home’s referral history included two prior investigated referrals from 2014 and 2015 which contained allegations of sexual abuse against the foster father by several foster children placed in the home at that time. In reference to the home’s referral history, DHS stated, “While acting as a foster home, allegations of sexual abuse by [the foster father] were investigated in 2014 and 2015. Children in the home disclosed [that the foster father] had become extremely intoxicated and touched them inappropriately. Three separate foster children disclosed fondling and grooming type behaviors by [the foster father].” Despite these disclosures, both referrals were unsubstantiated at the time and the home continued to care for foster children.32 In its internal review of the substantiated October 2017 case, DHS wrote, “The Department continued to place children in the home for two more years while having this information [referral history that contained child disclosures of sexual abuse] available to review.” The sibling pair referenced above was placed in the foster home in
32 Reviews by DHS in 2017 found there was sufficient evidence at the time of these investigations to meet the agency’s substantiation policy.
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May 2016, nearly two years after the initial child disclosures of abuse in the home. While only placed in the foster home for one month, both siblings were sexually abused by the foster father.
In foster homes substantiated for physical abuse, the case record review identified missed opportunities to identify and address prior referrals that contained similar allegations of physical abuse in the foster home. Specifically, the case review identified that nearly half of the foster homes substantiated for physical abuse had prior referrals (both investigated and screened-out), which included allegations of physical abuse. Even when there were repeated disclosures by children of inappropriate discipline in the home, the follow up joint reviews of these prior referrals indicate that DHS either took no action to address referral allegations or took insufficient action(s) that did not effectively eliminate the use of inappropriate discipline in the home.
In July 2017, for example, a foster home was substantiated for the physical abuse of a six year old boy. This home had two prior investigated referrals, which contained disclosures by the boy that he was subject to inappropriate discipline in the home. In the first of the two referrals (January 2016), the investigation documented that the child reported that “he was hit with a flyswatter.” In the second referral (September 2016), the child disclosed to his daycare provider that his “[foster mother] hit him with a belt.” During this investigation, the child disclosed that “when he gets into trouble at home, he is hit with a belt while his clothes are on.” The 10-day staffings following each of these investigations did not result in caseworkers taking any actions to address the foster home’s use of inappropriate discipline. Further, following these investigations, during monthly contacts, the caseworkers in the home did not discuss with the foster parent the discipline methods used in the home. The third substantiated referral was called into the DHS Abuse and Neglect Hotline in June 2017 when the boy was observed to have scratch marks on his face that he reported during the investigation were caused by the foster mother, who “had whooped him with a wood backscratcher.” The boy’s younger sister, four years old, disclosed during the investigation that she had “gotten whopped with a belt” in the home. During the 10-day staffing for the substantiated referral, DHS documented, “There was a discussion of Foster Care having concerns with inappropriate discipline, but it has not resulted in any written plans.”
Given that the most common type of substantiated maltreatment in foster homes from this review was physical abuse, which most commonly took the form of foster parents using inappropriate and harmful methods of discipline, DHS’ efforts must strengthen the assessment of referral histories to identify patterns of similar allegations and concerns, and take immediate and appropriate actions to mitigate risk to children.
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DHS’ efforts must better support caseworkers’ and supervisors’ ability to make safety-focused decisions during these post-referral joint reviews. The Co-Neutrals’ case record review showed that in some cases, caseworkers interpreted screened-out, ruled out or unsubstantiated referrals as indicating a particular foster home was safe for children. DHS must strengthen its training, coaching and support on the relevance of previous history, particularly emphasizing that screened-out, ruled out or unsubstantiated referrals do not unequivocally mean that safety concerns or risks are not present in the home and that no action by DHS is necessary to ensure child safety.
This period, DHS conducted a quantitative and qualitative review of its screen-out consultation practice and completed their analysis after the close of the current reporting period. The analysis reviewed a random sample of 125 screened-out consultations completed and entered into DHS’ KIDS database for the 12-month period of October 1, 2016 to September 30, 2017. A primary finding of the review was that of the 125 consultations reviewed, 74 consultations (59 percent) documented all required information to be covered during the consultation. However, the review also found that in 51 consultations (41 percent) all required information was not covered during a consultation. Further, of the 51 consultations that did not include all required information, 40 (32 percent) consultations lacked any discussion of the foster homes’ referral history. The gap undercuts in these instances the stated purpose of screened-out consultations to assess child safety in foster homes through a comprehensive review of foster homes’ prior referrals.
DHS reported it has begun development of an enhanced screened-out consultation guide in KIDS to address some of the findings from its review. According to DHS, the new guide will be released in KIDS in the Fall of 2018. The Co-Neutrals have urged DHS to ensure that staff receive sufficient guidance and instructions on the new guide as soon as possible while the technical components of the KIDS system are completed and the field is trained on appropriate use and documentation in KIDS.
DHS reported that during this period, DHS’ Continuous Quality Insurance (CQI) staff participated in five 10-day staffing calls to provide quality assurance support and technical assistance and the Office of Performance Outcomes and Accountability (OPOA) participated as a silent observer on four post-referral staffings. In total, DHS’ quality assurance teams participated in a total of nine post-referral joint reviews during this period. Due to this limited number of nine shadowed calls, DHS reported that no recommendations could be made to strengthen the 10day staffings.
During this report period, the efforts the department undertook to prevent harm to children by strengthening the quality of post-referral staffings were insufficient in scope, focus and
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timeliness.
Quality of Caseworker Visits; Assessing Child Safety
This period, the principal concern that DHS identified in its review of foster homes substantiated for maltreatment was the insufficient quality and consistency of caseworkers’ monthly visits to identify and/or address issues related to child safety. In fact, DHS identified that the quality of caseworker visits was inadequate for the majority of foster homes substantiated for maltreatment in the current review. In its review, DHS evaluated the quality of worker visits to assess child safety through the following eight questions:
x Did the caseworker conduct any unannounced visits to the foster home?; x If the child is an infant, was the infant observed unclothed?; x If applicable, did the caseworker address any contradicting information learned about
the home?; x Did the caseworker attempt to gather information from non-verbal/pre-verbal children
to assess safety?; x Did the caseworker discuss discipline practices with the child?; x Did the caseworker discuss safety with foster children and foster parents?; x Did the casework discuss with foster parents services to support child’s well-being?; x Did the caseworker discuss if any other people are in the home to visit or care for the
foster children?
DHS found the following concerns with the quality of worker visits: caseworkers did not consistently and/or thoroughly discuss with children the discipline methods used in the foster home; caseworkers did not regularly discuss child safety with foster parents; caseworkers did not routinely interview children alone; and, caseworkers did not, as appropriate, address any contradictory information identified about the foster home that may impact child safety.
The ongoing concern that caseworkers are not consistently and/or thoroughly discussing discipline methods and safety with foster children during visits is particularly troubling in light of the prevalence of child maltreatment substantiations that involved inappropriate discipline methods this period. In fact, of the 17 referrals that involved physical abuse this period, DHS identified 14 referrals with concerns related to the quality of caseworkers’ visits. While in some of these referrals, caseworkers failed altogether to discuss discipline and safety with children, in other instances caseworkers attempted to discuss discipline and safety, but the discussions appeared cursory and lacked a skillful and trauma-informed approach that would more effectively support children in disclosing maltreatment in their foster home.
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Further, the review identified that some of these foster homes substantiated for physical abuse had referral histories that contained prior allegations of inappropriate discipline. Given these histories, it was incumbent upon DHS to heighten its review and assessment of child safety during monthly visits. From a review of these prior referrals with allegations of inappropriate discipline, it did not appear caseworkers appropriately addressed these concerns and allegations with the foster children or parents.
DHS reported that its permanency planning program staff trained seven classes of new child welfare specialists, impacting approximately 140 new staff, on various areas related to child safety, including the quality of worker visits and safety assessments during visits. DHS indicated the training highlighted the importance of discussing discipline and supervision during visits, conducting three unannounced visits per year, and increasing contact with children and foster families during times of change and stress. This is a valuable step; however, DHS did not indicate that this training would be delivered to its hundreds of permanency caseworkers already deployed to the field.
DHS at first reported that efforts were being made to develop a tool for supervisory staff to evaluate, among other areas, the quality of caseworker monthly visits to assess child safety. However, DHS later reported these efforts were suspended due to its ongoing work to develop a new supervisory framework, which DHS indicated will include efforts related to worker visits. DHS shared some tools it developed through its supervisory framework to improve worker visits, including guidance on the topics and issues that must be addressed during a worker visit, and assessment tools for supervisors to use to evaluate caseworkers’ visits to ensure child safety. (See Appendix E) DHS reported that region by region, staggered implementation of this new framework will not begin until August 2018, with a goal for full, statewide implementation by February 2020. Given the serious and ongoing concerns about child maltreatment and the department’s own observations related to the quality of worker-child visits, the department must more quickly provide statewide guidance and support to staff in the field to identify and address risks to child safety during monthly visits.
Improving the Foster Home Approval Process
The Co-Neutrals’ case record reviews have historically revealed concerns regarding the approval of some foster homes with concerning child welfare, criminal and/or personal histories. This period, the Co-Neutrals’ review of substantiated maltreatment referrals continued to identify foster homes with concerning histories that were documented during the home approval process but were still approved to care for children in DHS custody. This period, the Co-Neutrals conducted their second comprehensive review of 50 Resource Family
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Assessments (RFA)33 of new homes (DHS and private agency traditional homes, and kinship homes) approved by DHS and private agencies between the months of October and December 2017. DHS’ and the Co-Neutrals’ record reviews of new home RFAs and foster homes with substantiated MIC referrals reinforced the urgency with which DHS must improve its home approval process. As described below, both reviews identified child safety concerns with the home approval process.
The central finding of the Co-Neutrals’ review this period of 50 new home RFAs was that nearly a quarter (24 percent) raised concerns about the family’s protective capacities to safely care for foster children. The Co-Neutrals’ review last period of 50 new homes opened between January and June 2017 produced a similar finding, with 23 percent raising questions about the decision to approve each home. The most frequently cited concern in both the current and former RFA review was related to the personal backgrounds of prospective foster families, which called into question the suitability of foster parents due to issues such as: drug and/or alcohol abuse, domestic violence and/or child welfare histories involving the resource parents and/or family members. The Co-Neutrals shared with DHS their findings from these reviews and the department reported that it has followed up on specific cases as needed to ensure the home was approved appropriately and is using the information gathered to further assess where the resource family assessment process requires additional improvement.
The Co-Neutrals reviewed and analyzed all substantiated maltreatment referrals this period for children in care, which is distinct from the Co-Neutrals’ review of 50 new home RFAs described above. The maltreatment review identified foster homes with concerning home approvals. In particular, the review found some homes were approved to care for foster children despite child welfare histories, the identified use of inappropriate discipline, and, in a few cases, criminal histories. It was unclear from the review if DHS addressed these issues during the home approval process. The review also found that in some cases the maltreatment substantiated in a foster home was related to the concerning issue identified during the foster home’s approval process.
During the home approval process for a kinship home substantiated for maltreatment this period, for example, DHS failed to identify the home’s prior substantiated child welfare history. DHS reported that during the investigation, it was found that the foster mother had “a
33 The RFA is a compilation of information that includes the background of each foster parent, all household members and closest family members of the applicant as well as information about the family’s physical home, finances and medical histories. The RFAs for DHS’ traditional and kinship foster homes are developed by five contract agencies charged with objectively compiling all the relevant information so that DHS can assess the quality of each home and determine if there are any concerns that DHS may need to review and consider in greater depth.
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substantiated child welfare history for failing to protect her grandchildren against sexual abuse by another one of her sons.” The current investigation, substantiated in July 2017, involved similar confirmed allegations of the foster mother allowing her other son (a convicted sex offender) access to the one year old foster child. Documented in the 10-day staffing notes, DHS wrote, “Additionally, participants discussed [foster mother’s] substantiated CW history from 2004 for failure to protect when another one of her sons sexually abused her grandchild and she refused to believe it.
DHS’ Efforts to Strengthen Home Approval Process
Last period, in response to the findings of DHS’ and the Co-Neutrals’ first review of 50 new home RFAs, DHS proposed, and the Co-Neutrals approved, a detailed action plan to address the specific concerns surfaced through the RFA review. The RFA Action Plan includes: ongoing, quality assurance through resource home case reviews; training for staff and supervisors to enhance their assessment skills and use of new resource home review tools; the development of new training for all resource staff on conducting thorough home assessments; and guidance on higher-level reviews and approval of homes with concerning histories. During this period, DHS began to implement its RFA Action Plan. Specifically:
x Effective September 15, 2017, DHS established a new protocol that requires field managers to review prospective foster families that have any noted history involving physical violence, substance abuse or any type of sexual-involved maltreatment. This new protocol was developed in response to historical concerns of foster homes approved with these concerning backgrounds.
x DHS provided trainings to relevant staff and supervisors to build the competencies and critical thinking of the individuals charged with developing home assessments and those responsible for approving them.
x Continuous Quality Insurance (CQI) staff assisted with a review of 72 recently approved homes that were considered high risk due to having a prior child maltreatment referral or Written Plan of Compliance (WPC). DHS reported the findings of this review raised similar concerns about the home approval process decisions.
x In October 2017, DHS reported it began a review of criminal, child welfare and family histories, and references on all open traditional and kinship resources.
x At the very end of the period, DHS revised the Record Check Documentation form to promote workers’ review and documentation of identified criminal and child welfare history. The revised form includes three new public searches for foster and adoptive applicants, which are required per state statue. In addition, the form was updated to include an applicant’s account of any criminal or child welfare history and the disposition validated by higher-level staff.
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x Lastly, also at the end of the period, DHS developed the Initial Kinship Safety Evaluation and Approval tool. According to DHS’ February 2018 Semi-Annual Summary Report, the “tool assists resource staff to ensure all initial kinship requirements are met and the child’s safety is ensured prior to placement in a kinship placement.” The tool requires supervisory approval prior to a child’s placement in the kinship resource.
DHS also decided to rely more substantially on resource family supervisors in the review and approval process of new homes. Central to this work is ensuring that supervisors conduct thorough reviews of all RFAs of prospective foster homes developed in their respective management areas. Supervisors have always been required to document their decisions to approve a new home. However, the long-standing practice had been that a team of DHS readers undertook the primary review and approval of RFAs statewide. DHS found that supervisors were not consistently conducting thorough reviews of new home RFAs, as required, instead relying on the readers. DHS is in the process of removing the role of the readers and reestablishing the primary role of supervisors to review and approve new homes.
DHS developed a Resource Family Assessment Review Tool to facilitate supervisors’ review of RFAs.34 This tool comprehensively captures requirements that must be met by prospective foster parents and prompts supervisors to assess any identified deficiencies or concerns surfaced through the home approval process and document, if the home is approved, how DHS was able to resolve the issues to ensure child safety. DHS requires that supervisors upload the completed review tool to the KIDS digital file cabinet for the new, approved home. In a review this period of 50 new home RFAs, the Co-Neutrals observed that implementation of the review tool is still in its initial stages. The Co-Neutrals found that supervisors are not yet routinely using the new form to document the actions taken by DHS to address and/or mitigate any identified safety concerns in the home and the form is not consistently uploaded to new homes’ resource file cabinets in KIDS.
Core Strategies to Reduce MIC in Facilities
Throughout this report period, there continued to be an overwhelmingly disproportionate rate of child maltreatment in institutional settings. Based on the MIC data reported for this period, which showed that 16 more children were abused and neglected in institutional settings than during the last period, the Co-Neutrals have serious concerns about DHS’ efforts to achieve substantial and sustained progress for child safety in institutional settings.
34 This period, DHS created the Resource Family Assessment Review Tool by combining two prior tools - the Resource Approval Checklist, which was completed by the assigned supervisor to ensure all requirements are met by applicants for full resource approval, and the RFA Review Tool, which is used by both the Co-Neutrals and DHS in their respective reviews of the home approval process.
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Between October 1, 2016 and September 30, 2017, DHS substantiated the maltreatment of 60 children placed in institutional settings, compared to 44 children for the prior period. These 60 child victims were identified in 41 distinct substantiated referrals. Investigators determined children were abused or neglected in 24 distinct institutional settings in Oklahoma this period. As the Table below illustrates, the majority of child victims and distinct substantiations during the current period were heavily concentrated among six institutions.

Table 7: Institutions with More Than One Substantiation, October 2016 to September 2017

Resource

# of Distinct Substantiations

# of Child Victims

Facility 1*

8

9

Facility 2**

4

9

Facility 3

4

5

Laura Dester

3

4

Facility 4

2

2

Facility 5

2

3

TOTAL

23 of 41

32 of 60

Percent of Total Substantiations This Period

56%

53%

*This facility is now closed.

** DHS placed a hold on new placements at this facility as of March 28, 2018.

The recurrence of child maltreatment at these six institutions this period raises questions about DHS’ capacity to effectively address and remedy identified safety concerns in institutions where it places children. Following the close of this data report period, three of these institutions continued to report additional, confirmed child maltreatment.

During the fall of 2015, DHS began implementing a series of commitments to expand and strengthen protocols for oversight, monitoring, and engagement with higher-level institutions to reduce the risk of maltreatment of children and youth living in institutional settings. Specifically, these protocols require DHS to initiate and enforce corrective actions to mitigate any identified safety concerns in an institution. For those institutions with confirmed child maltreatment, DHS is to apply heightened monitoring and oversight to ensure the timely and full resolution of safety concerns. DHS also committed through new contract requirements to ensure that all group home facility staff are trained on Managing Aggressive Behaviors (MAB), a model of positive youth development selected by DHS to prevent child restraints and deescalate behavioral challenges presented by children and youth.

During this report period, the Co-Neutrals observed DHS’ continued implementation of these commitments, with varied rigor and to varying degrees of effectiveness. Despite these efforts,

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the rate of maltreatment increased in institutional settings for this report period. In a review of three institutions that were the sites of multiple child maltreatment substantiations this period, the Co-Neutrals found, as documented by DHS, ongoing safety concerns that placed children at increased risk of maltreatment during the period. One of these institutions is the stateoperated shelter, the Laura Dester Children’s Center. Included below is a detailed summary of the safety concerns identified by DHS and the Co-Neutrals at the shelter that led to a dramatic increase in child maltreatment between October 2017 and May 2018.
DHS’ Efforts to Reduce Child Maltreatment in Institutional Settings
In 2015, DHS designed a protocol to delineate the steps DHS and facilities must take during and following an investigation of maltreatment, or when any issue affecting child safety is identified. In a review this period, the Co-Neutrals observed that Specialized Placement and Partnership Unit (SPPU) liaisons initiated actions following an investigation but did not consistently remedy the identified concerns. DHS often initiated a corrective action plan (CAP) following an investigation to address any employee-specific concerns. However, the review found that Facility Action Steps (FAS) were less often initiated to address facility-wide (or agency-wide) practices or conditions of concern, including contract compliance, inadequate training, poor staffing levels, over-use of restraints and inadequate supervisory oversight. Given that some of the facilities had systemic or cultural concerns identified by DHS that were not effectively addressed to reduce the risk of harm to children, the department missed critical opportunities to promote child safety.
DHS committed in 2015 to undertake heightened monitoring of institutions with the highest number of maltreatment substantiations. This is supposed to include, among other activities, quarterly audits with facility leadership to review agency data and performance; bi-weekly heightened monitoring meetings within DHS to track safety and progress on risk mitigation; and a formal accountability process when improvements are not implemented by established deadlines. The facilities subject to heightened monitoring are selected quarterly based on DHS’ most current child maltreatment data, which identifies institutions with the highest number of MIC substantiations for the period. Since the inception of heightened monitoring in 2015, DHS has identified 21 group homes and shelters it determined required intensified oversight to address identified child safety concerns. Nineteen of these facilities participated in heightened monitoring, while two declined. Of these 19 facilities, nine are no longer providing placement to children in DHS custody due to contract termination or closure. One of these facilities is the state-operated Laura Dester shelter, which the Co-Neutrals ordered DHS to cease using due to concerns for children’s safety. As of July 31, 2018, eight of the 19 facilities have not had any confirmed child maltreatment following the implementation of their heightened monitoring improvement plans. The remaining two facilities are currently subject to heightened
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monitoring and, as discussed below, have experienced recurrent maltreatment after the initiation of heightened monitoring.
As DHS committed in its core strategies, each facility subject to heightened monitoring had an active Facility Services Plan (FSP) during the report period. The FSP is a rolling document created and maintained by the assigned SPPU liaison to track and monitor a facility’s maltreatment referral history and all identified child safety risk factors. The Co-Neutrals observed that on the FSP for each facility subject to heightened monitoring, the SPPU worker recorded their observations monthly from their visits to the facility, and made note of issues that needed to be addressed. For three of the institutions with multiple substantiations, SPPU workers documented ongoing, unresolved concerns with the facility in the FSP as DHS continued to place new children there. For example, in DHS’ FSP for a Level E group home, DHS documented its efforts, observations, and concerns for each month the institution was subject to heightened monitoring from January 2017 to December 2017. During 12 months of monitoring and engagement by DHS at this facility, DHS consistently documented concerns of a prevailing culture of “control and compliance” with children that did not adequately include “trauma responsive elements” of care, staff failing to engage with youth, and facility leadership’s reluctance to take steps toward improving the quality of care provided to children. As these concerns continued despite DHS’ oversight of the facility, maltreatment of five children was confirmed at the facility between June 2017 and December 2017. As of June 2018, there were four additional pending investigations at this institution with allegations of child abuse and neglect while DHS continued to place children there.
The Co-Neutrals found similar issues at another Level E group home that cares for children who are 12 years of age and younger with higher-level behavioral and emotional challenges and needs. This group home first became subject to DHS’ heightened monitoring in November 2015. The Co-Neutrals observed that over nearly two years, DHS has provided enhanced oversight and increased its presence, particularly during periods of instability at the facility. However, these efforts have not prevented continued incidents of child maltreatment at the facility. Significant concerns for child safety remain regarding a lack of adequate staff supervision and errors in the administration of prescribed medications, which have continued to result in harm to children. During this report period, investigators determined nine children were abused and neglected at this institution. Since the close of the reporting period, four additional children were maltreated. As of June 2018, there were an additional two investigations pending with allegations related to lack of supervision and improper medication
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administration.35
Supporting Group Homes to Therapeutically Manage Child Behavior
During this report period, institutional staff physically abused 19 (32 percent) of the 60 child maltreatment victims in institutional settings. In response to historical concerns of children being subject to improper and/or unnecessary physical holds and restraints, DHS contractually required all group homes to adopt the MAB positive behavioral management model, which emphasizes de-escalation techniques. DHS committed to reduce the number of restraints and other non-therapeutic interventions that were used against children and youth in the state’s custody. DHS made available to group home staff the resources of Oklahoma’s TraumaInformed Care Project (TICP) to coach and build the expertise of each group home’s MAB experts and help to address child-specific challenges. This period, DHS reported higher-level institutions participated in a number of MAB related trainings. However, a DHS investigation of child maltreatment at Laura Dester, initiated in February 2018 (three months after MAB was reportedly fully implemented at the shelter and two months after the close of the reporting period), identified the following:
x Concerns that staff do not fully understand the concepts of MAB; x Floor restraints of children, which are prohibited under MAB, are commonly used at the
shelter. In addition, the investigation identified that floor restraints appear to be under-reported at the shelter and shelter administration is not monitoring the occurrence and use of floor restraints; x It was reported the staff use whatever means necessary when in a physical restraint with children; and, x It appears no one from administration is following up to ensure staff completes the required MAB training.
As the Co-Neutrals reported in the last Commentary, staff at some institutions have not fully adopted the MAB practice model.
Laura Dester and Child Safety
During the reporting period, the Co-Neutrals continued to express grave concerns about child safety at Laura Dester to DHS leadership. For more than two years, DHS used Laura Dester as a placement for children from across the state with complex behavioral, medical and developmental challenges or who, for other reasons, DHS could not locate a family or needs-
35 As of this report writing, DHS currently has a hold on any new placements in this facility.
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based placement. Despite the acute nature of the behaviors and therapeutic and medical needs of many of the children placed at Laura Dester, DHS did not establish conditions that would ensure a reasonable level of safety.
In the third Commentary issued in October 2014, the Co-Neutrals first began to report concerns regarding incident reports and the lack of sufficient staffing and expertise to meet the higherlevel medical and therapeutic needs of many of the children placed at both Laura Dester and Pauline E. Mayer, the other state-operated shelter open at that time. The Co-Neutrals have continued to present to DHS ongoing, similar and at times more serious concerns about the care and safety of children at Laura Dester. DHS had previously announced plans to close or discontinue using Laura Dester as a children’s shelter by December 31, 2015. DHS made this decision as an extension of its original commitment under its Pinnacle Plan to discontinue by July 2014 placing any child ages 12 and under in a shelter or other non-family based setting unless they met an allowed exception to keep siblings together or a child with a minor parent in custody.
After closing the Pauline E. Mayer state-operated shelter in November 2015, DHS announced that due to a lack of family and need-based placements, it would not be able to close Laura Dester until January 2017 but that routine, new admissions would end by October 2015. Any new child placements would be allowed only by permission of the child welfare director and in very specific circumstances after exhaustive efforts were shown to have failed to secure an alternate needs-based placement for the child, preferably in a family based setting. DHS announced that it would close the shelter after the last child was placed out of Laura Dester. By February 2016, DHS had made efforts to reduce the population at Laura Dester to nine children. However, by November of 2016, the number of children placed at the shelter rose again to 2030 placements at any given time and DHS leadership reported that closure of the shelter by January 2017 was unlikely.
Throughout the most recent 2017 calendar year, the Co-Neutrals had numerous discussions with DHS about ongoing concerns with respect to the safety of children at Laura Dester and the quality of their care. Some of these discussions were prompted by specific incidents, including: a child who was tased and handcuffed at the shelter by local police; a child whose medical needs were reported by medical professionals to exceed the medical care capacity of the shelter; and the Co-Neutrals’ direct observations at the shelter of poor supervision of children and limited resources for staff. Throughout these discussions, DHS promised repeatedly to expand staff capacity through additional hiring and training.
As noted above, the need for additional, well-trained staff was exacerbated when DHS’ child placements at Laura Dester raised the population to 44 children by June 30, 2017. After a visit to the shelter in July 2017, the Co-Neutrals conferred with DHS leadership about a number of
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concerning observations, primarily regarding shelter staff’s lack of supervision, engagement and ability to safely manage the needs of children at Laura Dester. DHS leadership pledged that improvement work was in progress.
In September 2017, the Co-Neutrals met with a broad group of DHS and shelter staff and leadership, as DHS requested the opportunity to present all of its efforts to improve safety and the quality of care at Laura Dester. DHS presented a number of actions planned or underway, including that:
x DHS reported it had developed a Continuous Improvement Model plan as part of its SPPU Heightened Monitoring team work. The plan addressed physical interventions with appropriate documentation and debriefings, including new incident forms, to ensure more accurate accounting of incidents and as a self-reflecting learning tool to improve de-escalation skills. The plan also included specific tasks to improve engagement and use of skill-based activities with the children and quality assessment of staff’s use of MAB and additional MAB coaching as needed.
x DHS assigned a SPPU liaison to work solely with Laura Dester and to employ Heightening Monitoring full time.
x DHS said it planned to hire 15-20 additional direct care staff to reach a 1:4 ratio and allow for 20 direct care staff for each shift.
x DHS planned to bring on four child welfare specialists (one assigned to each cottage); three recreational staff and a program coordinator; a full-time (M-F, 8am – 3pm) teacher to provide educational instruction for children not attending public school at any point in time; and, a resident advocate. The shelter director said that they had already identified the program coordinator and resident advocate.
x DHS was retrofitting Cottage D, which was previously designed for infants and toddlers, to have more living space for older children and to better separate children based on their sensory needs.
x DHS was continuing to implement the Journey program designed to help children progressively learn to manage their behaviors. This program had been in place at Laura Dester for some time through a contract with River Parks Developmental Center.
x DHS was mapping the best way to complete an intake on a new placement (getting information about the children, sharing information with staff, and developing safety plans).
x DHS was continuing multi-disciplinary staffing to identify alternate placements that best meet the needs for permanency and well-being for children at Laura Dester.
x DHS was continuing to coordinate and expand efforts of DDS and child welfare to meet the therapeutic placement needs of children with developmental disabilities.
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Unfortunately, DHS’ plans did not adequately ensure children’s safety or mitigate the substantial risks to child safety that reoccurs in the allegations of child maltreatment investigated by OCA over the past year. The increase in child maltreatment observed at Laura Dester over the last year coincided with a sharp increase in the number of children placed at the shelter. DHS reached its lowest population of children at Laura Dester during the first half of 2016, which corresponds to a much lower number of maltreatment substantiations recorded for the first semi-annual period from October 2016 to March 2017. During the following period, April 2017 – September 2017, DHS substantiated two referrals that involved a total of three children. And following that, from October 2017 – March 2018, DHS substantiated eight more abuse and neglect referrals that involved 10 children. DHS’ own records present, with an overwhelming and compounding amount of detail, the unacceptably high level of risk and unsafe conditions created by placing together in one facility so many children with significant and complex needs and behaviors without ensuring an appropriate level of staff, training, and organizational and programmatic management and oversight.
The Co-Neutrals’ concerns snowballed with the precipitous increase in child maltreatment at Laura Dester between October 2017 and March 2018. The Co-Neutrals reviewed over 100 abuse/neglect referrals prior to March 2018; over 1,000 incident reports; DHS internal records, policies, and operational documents and communications. The Co-Neutrals visited the site and made direct observations at Laura Dester before, during and after the report period, and participated in years of discussions with DHS leadership regarding concerns about DHS’ efforts to establish safe, quality care for children placed at the shelter.
Summary of Operational and Safety Concerns at Laura Dester
Amid growing concern that the rate of maltreatment at Laura Dester showed an alarming and substantial upward negative trend with respect to the number of children in the state’s custody who were abused or neglected while placed at the shelter, the Co-Neutrals, on March 5, 2018 directed DHS to cease placing any additional children in this state-operated children’s shelter. Under Section 2.14 of the CSA, the Co-Neutrals are granted the authority to require DHS to undertake and maintain diagnostic and remedial activities when the department fails to achieve positive trending or begins to trend negatively in any area. Further, the Co‐Neutrals directed DHS to develop and submit a transition plan to place all children out of the Laura Dester shelter by a date to be determined but not later than June 30, 2018.
Despite the Co-Neutrals’ order of March 5, 2018, that DHS cease all admissions to the shelter due to serious concerns about child safety, DHS placed a 13-year-old boy at Laura Dester on March 7, 2018. On March 28, 2018, a staff person at Laura Dester physically punched that same child. On April 25, 2018, DHS substantiated child abuse. In its investigation, OCA documented that the staff person failed to employ de-escalation techniques in his
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engagements with the child, and instead escalated the situation by engaging physically and aggressively.
On March 15, 2018, DHS submitted to the Co-Neutrals a memorandum with its Proposed Plan to Eliminate Laura Dester Children’s Center as an Emergency Shelter, including an express commitment that “[g]oing forward, the Office of Client Advocacy will ensure all pending and incoming investigations involving [Laura Dester] are completed within required timeframes so that critical information needed to make safety and/or personnel decisions is available in a timely manner,” which the department simply never honored. 36 The department’s latest plan also listed other efforts which the agency represented would improve safety conditions and oversight at the shelter, but subsequent child abuse/neglect referrals at Laura Dester after the plan’s submission strongly suggested otherwise.
DHS Documented Areas of Concern at Laura Dester
DHS records reveal many safety and quality of care concerns at Laura Dester. Two primary areas of concern were the use of excessive force or other inappropriate actions by staff against children and the lack of adequate staff supervision of children. In June 2016, the University of Oklahoma’s National Resource Center for Youth Services completed a program assessment of Laura Dester. The program assessment, while completed two years ago, offers a cogent summary of the risks to child safety that remained present in the reporting period. The assessment listed the following areas as needing programmatic improvement:
x Current staffing and programming is not designed to meet the specific needs of many of the young people currently residing at the shelter. (The assessment reported that the last child maltreatment substantiation was due to staff not having proper training in the use of a feeding tube, resulting in a child not being fed.)
x Staff continue to struggle in positively engaging those young people at the shelter who exhibit more challenging behaviors, often referring to these young people as “delinquent.”
x Requests for specialized equipment to assist with the activities of daily living for some of the residents have been difficult to meet.
36 The Office of Client Advocacy (OCA) is part of DHS’ organization but is separate from the main child welfare agency. OCA investigates reports of child abuse and neglect in institutional settings while Child Protective Services (CPS), which is part of DHS’ child welfare agency investigates reports of child abuse and neglect in family settings, including foster homes.
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x Staff are struggling to keep all the young people actively engaged in meaningful, developmentally appropriate activity.
x Staff need training and supervision regarding working with young people with intellectual disabilities or require assistance in self-care, mobility, and communication, as well as those young people whose development, behavior, and relationships are impacted by traumatic histories.
x In order to keep shifts covered, many staff are working double shifts and extensive overtime. Staff are tired and get little relief from this highly stressful situation. This can have an impact on their ability to provide consistent therapeutic interactions.
x Some staff forget the developmental level or the traumatic histories of the youth they are working with. Some staff may not understand the needs of the youth or what sorts of interventions would be helpful.
x Some staff are not skilled at noticing when youth are in the initial stages of crisis, so interventions do not come until much later in the escalation.
Over a year after this program assessment identified concerns with the quality of care at the shelter, Tom Bates, who at the time served as Special Adviser to Governor Mary Fallin and Interim Advocate General of the Office of Client Advocacy (OCA) at DHS, forwarded to DHS child welfare leadership in a January 12, 2018 email a list of safety and quality of care concerns at the shelter observed by OCA staff familiar with abuse/neglect investigations at Laura Dester. The email contained the following:37
Attached are a list of concerns about the shelter that were submitted to me by OCA staff. I know you continue to work on securing adequate staffing, but one issue that continues to come up is the availability of supervisors and the support they are providing to staff on the floor. Is there a plan to address that issue? In order to take full advantage of our time with Jim Powell, it is imperative that supervisors and MAB trainers be on the floor with him. I understand that those personnel may have been covering other duties so let us know what we would need to do to get you the support you need. Director Lake has made clear that he will make that support happen.
37 Through an independent review of substantiated, unsubstantiated and screened out referrals from Laura Dester, the Co-Neutrals identified a number of the specific referrals and reports that directly formed the basis of Mr. Bates’ January 12 email, some of which are summarized below.
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Concerns regarding Laura Dester:
1. [Staff X] been observed in the Cottages since he has been placed on no contact. [Staff X] has a current referral where he is seen on video and placing his hands around a child’s neck and forcing him to the floor. He is also seen on video on top of a child during a restraint. Safety Plans are not being followed.
2. Not enough staff in the cottages. It was reported the ratios that are currently in place do not match the level of supervision needed for the types of children placed at the facility.
3. It was reported the staff have been given the task of supervising up to 8 residents, which is an unreasonable expectation.
4. Supervisors stay in the administration building, even though the supervisors are aware the staff are struggling to maintain order in the cottages.
5. It was reported when the supervisors are called for assistance they either do not answer the phone or they arrive after the incident passed.
6. It was reported the administration that comes in on the weekend is no help to the staff and does not serve a purpose, as they are not on the cottages assisting the staff.
7. It was reported staff are working multiple 16 hour shift a week, which makes them irritable and less effective. LDCC has a policy in regards to mandatory overtime, which does not give them any choice as to when they can go home. This was reported to be occurring 3-4 times a week. This alone puts the children at great risk for neglect and or abuse, not to mention we are forcing staff to neglect their own families in order to keep their jobs.
8. Staff are having conversation about not feeling supported from their supervisors and administration.
9. It was reported the staff are not receiving adequate training for the population that is currently placed at the shelter.
10. It was reported a countless number of children are not enrolled in school and not on homebound services.
11. It was reported the CWS assigned to the children placed at the facility are not receiving daily/weekly incident reports on their children, therefore they are unaware as to how bad the environment and behaviors are at the facility.
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12. There are concerns children are discharging from the facility with more issues than they arrived with.
13. It has been reported there is a disconnect between the Shelter SW’s and the CWS assigned to the children.
14. It has been reported the kitchen is not serving adequate amounts of food for the children, and the food that is served is terrible quality.
15. It was said that African American residents do not have the appropriate products to keep their hair healthy, and are not be taken to get their hair cared for.
16. It was reported the residents are not receiving adequate therapy at the facility and have severe trauma, abuse, and neglect in their history. These children are staying at LDCC for extended periods of time and need/deserve treatment.
17. Residents are being sexually abused by other residents, and then remain on the same campus with them. We would not allow this in a home setting, so why is this happening at a DHS shelter?
18. Staff are moved around from cottage to cottage therefore they do not build solid relationships with the children.
Heightened Monitoring at Laura Dester
During the report period, in September 2017, following two substantiated referrals of child maltreatment at the shelter, DHS decided to make Laura Dester fully subject to heightened monitoring through the SPPU program office. In addition, beginning in October 2017, a lead DHS staff person began bi-monthly visits to the shelter to observe both shelter staff and leadership and to address identified concerns that impact children’s safety while placed at the shelter. The Co-Neutrals’ review of the Laura Dester shelter’s FSP for September 2017 through December 2017, as well as over 100 SPPU contact notes from January through March 2018 revealed that DHS’ SPPU unit’s ongoing, documented observations mirror, but did not ameliorate, many of the child safety concerns lifted up by DHS’ Office of Client Advocacy, as summarized in Mr. Bates’ January 2018 email, and those highlighted in the program assessment completed in June 2016.
The confirmed allegations of maltreatment at Laura Dester include incidents of children being choked, punched and kicked. In one instance, a referral was made on October 4, 2017 that on an unknown date, in the cottage kitchen, a 12 year old child knocked a container of Gatorade
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on the kitchen floor. Since he had just cleaned the kitchen floor, the staff person was reportedly upset by the spilt juice. The staff person placed the child in a headlock, which is an unapproved hold. On March 30, 2018, OCA substantiated child abuse. The staff person substantiated in this referral is the same staff person responsible for abuse in three other maltreatment referrals. Following the first abuse referral on August 18, 2017 this staff person was subject to a Plan for Immediate Safety (PFIS), which stipulated that he was not to have any contact with residents. As evidenced by three subsequent incidents of substantiated abuse after this initial August 18th referral, DHS did not comply with the safety plan and the staff person continued to abuse children. This typifies much of DHS’ approach to child safety at Laura Dester: warning lights that often went unheeded in a timely way.
There are numerous instances, as well, where DHS did not substantiate maltreatment, but the investigation revealed serious harm to the child. In one such case, a first-hand report was made by shelter staff that on December 1, 2017, a seven year old child who is non-verbal and deaf, was found in the bathtub with water pouring onto the bathroom floor and into the hallway. A direct care staff person was observed jerking the child out of the bathtub, pulling the child’s ears and slinging the child across the bathroom and bedroom floors, causing the child’s hip to hit the edge of the bed. Heightened monitoring and child welfare staff confirmed observing the staff person becoming increasingly agitated with children and holding another child, in a separate incident, on the ground in a threatening manner. Several days after this bathtub incident, the seven year old child presented with a large bruise on his buttocks, a nickel-size bruise on his hip and a 1-2 inch scratch. The investigation interviews and notes reported that the staff person in question lacked credibility and did not provide appropriate care to children. OCA’s investigation resulted in an unsubstantiated finding of abuse on December 14, 2017, but did confirm caretaker misconduct.
Staffing challenges: lack of supervision
Child neglect in the form of inadequate supervision was the most frequently reported allegation in the records the Co-Neutrals reviewed at Laura Dester. Given the medical, behavioral, and/or developmental challenges of many of the children placed at the shelter, adequate supervision of children is imperative to protect children. In its first month (September 2017) of heightened monitoring at Laura Dester, SPPU documented that “youth were roaming around the cottages and outside unsupervised.” In each subsequent monthly update through January 2018, SPPU documented observations regarding the lack of supervision, including concerns that children with problematic behaviors were observed without any supervision at the shelter.
Some of the children at the shelter, due to their specialized needs, require one-on-one, line of sight supervision. In some cases, these children who require constant supervision were documented as unsupervised by shelter staff. For example, on January 11, 2018, SPPU
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“observed a client on heightened supervision alone.” Referrals monitored by SPPU in contact notes also documented the unsafe outcomes that resulted from a lack of supervision, including children: physically assaulting one another; presenting with unexplained injuries; and missing from care (MFC).
A leading factor contributing to a lack of supervision was the significant deficiency in DHS’ efforts to establish and implement accountability processes at the shelter. Most notably, shelter management did not adequately train staff on a process to identify, document and track which direct care staff person was assigned to which child(ren) for each shift.38 DHS also did not establish a process to ensure that direct care staff consistently was made aware of all precautions they needed to take in order to safely care for each child assigned to them. DHS implemented new accountability processes that were intended to inform staff of each child’s specialized needs and supervisory requirements (i.e., food allergies, aggressive or SAO behaviors, requirement for 1:1 supervision) but during an unannounced visit to Laura Dester commencing at 6:00am, the Co-Neutrals on April 9, 2018 observed a substantial lack of consistency in staff’s implementation of these improved accountability processes. In particular, the Co-Neutrals observed concerns related to staff documenting the required, minimum 15minute checks for each child and when the supervision of a child changes within a shift from one staff person to another. Further, staff were not documenting if they observed a new injury on the child(ren) assigned to them. Of the 22 accountability sheets (one for each child on campus) completed for the first shift on April 9, 2018, the Co-Neutrals found that this new injury section was completed on only five of the sheets.
Numerous substantiated child maltreatment referrals revealed ongoing problems regarding shelter staff supervising children, particularly those who have specialized needs and vulnerabilities. An eight year old child who is autistic and non-verbal and requires 1:1 supervision due to his specialized needs and vulnerabilities was able in March 2018 to enter a bathroom and put himself in the bathtub with water without staff knowledge. Once staff became aware the child was in the bath, they proceeded to leave him unattended in the bathtub with the exception of implementing five-minute checks. The investigation clearly identified that the safety risks on this day were due to inadequate supervision and training of new DCS staff, especially as related to children with heightened needs. On the day of the incident the shift supervisor assigned two staff to the cottage where the child was placed. The two staff were new, both having worked less than a week in the cottages. In addition, staff person A was instructed to shadow staff person B who reported it being only her third official
38 There are three shifts in each day’s 24-hour period: first shift is 6:45am – 3:15pm; second shift is 2:45pm – 11:15pm; third shift is 10:45pm – 7:15am. These shift overlaps by 30 minutes to allow for shift change briefings and continuous supervision.
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day working in the cottages. The supervisor said that his rationale for placing two new staff in the same cottage without supervision was that this cottage had the lowest census and the residents in the cottage were typically “easier” to take care of. However, as the Co-Neutrals discovered, the children typically placed in that cottage were children with developmental disabilities who required heightened supervision and care. The supervisor reported that the supervision level for children in that cottage was “Line of Sight,” reflecting the increased needs of this population of children. However, the supervisor reported that the Master Log did not notate that “Line of Sight” supervision is required for children in this cottage. According to DHS, “[The new staff] had not been made aware of [the child’s] diagnosis or level of supervision…[The supervisor] had a responsibility to ensure the safety of the resident by providing adequate supervision with an appropriate caretaker, as he was the supervisor on duty. [The supervisor] admitted the children in Cottage D were to have Line of Sight supervision; however, he failed to advise either [new staff member].”
Both new staff reported that their training was limited in regards to the care of children, the guidelines of care in the cottages, and daily schedules. Both reported that during training they were not informed of children who could not be left alone in the bathtub. In addition, they both reported being unaware of the eight year old child’s diagnoses and specialized needs.
The DHS investigative report stated that the supervisor “failed to ensure [both new staff] had the necessary need-specific information to provide appropriate care and supervision to [the child], which could have resulted in serious physical injury.” On June 28, 2018, DHS substantiated Neglect – Threat of Harm to the supervisor on duty.
This investigation found that the same child had been observed at school with dried feces on his socks and legs. It was also reported that school staff attempted to contact Laura Dester when the child needed to be removed from school and it would sometimes be hours before any one from the shelter arrived to attend to the child.
On July 5, 2017, staff brought a non-verbal nine year old child on an outing to the Tulsa Air and Space Museum. Two vans transported the children to the shelter and four staff were responsible for supervision during the outing. After the visit to the museum, while traveling back to the shelter in one of the vans, a staff person received a phone call that the nine year old child was still at the museum, having been left behind at the museum by shelter staff. The investigation identified that the outing to the museum was poorly organized and the appropriate level of planning and supervision to ensure child safety was not demonstrated by shelter staff. In particular, the investigation found that safety protocols such as conducting a head count of children prior to leaving the museum and documenting which van transported which children, were not followed. On January 31, 2018, DHS substantiated Neglect – Lack of Supervision against the four staff responsible for supervision during the outing. After returning
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to the shelter, the child was observed with a burn on his left forearm that measured 2X2 inches and was identified by the nursing staff as a second degree burn. Due to the child being nonverbal, the investigation was unable to determine how the child sustained the injury. The investigation notes that the child did not have the mark prior to the outing to the museum. OCA substantiated Neglect – Failure to Protect against an unknown caretaker. This same child was physically injured and maltreated several months before this incident as confirmed in a separate maltreatment investigation at Laura Dester.
In addition to the numerous substantiated allegations of maltreatment for lack of supervision, the Co-Neutrals reviewed 36 maltreatment investigations that closed between September 2016 and March 2018 with an unsubstantiated finding. The majority of these investigations (25) involved allegations of a lack of supervision. One referral involved a six year old who is nonverbal and autistic missing from the campus for 45 minutes on October 15, 2017, during which time a car had to stop abruptly to avert hitting the child as the child had crossed the busy thoroughfare in front of the shelter. The investigation report showed that Laura Dester staff was aware that this child was a “runner” but still did not maintain sufficient supervision to prevent the child from leaving the shelter campus alone.
A plan for immediate safety (PFIS) was established the next day stating, “shelter staff will maintain line-of-sight supervision of [this child] at all times.” Two days after this PFIS was established, this same six year old again went missing and was later found by staff in a vacant room taking a bath unsupervised. (Note: the vulnerable child involved in this incident is different from the children involved in similar bathtub incidents referenced above.)
It was reported that on November 10, 2017, two children, one who is autistic and non-verbal (age six) and the other who is non-verbal and deaf (age 12) were left unsupervised, outside in the shelter courtyard and unable to re-enter the shelter for 30 minutes. Both of these vulnerable children were assigned one-on-one supervision but their assigned staff were on a smoking break. A shelter staff person who was on light duty (could only sit) observed this incident. DHS screened out the allegations and did not assign this referral for investigation, noting that lack of supervision is a licensing violation.
Staffing Challenges
Throughout DHS’ records, staffing shortages are reported to have limited staff’s ability to sufficiently supervise and engage children at the shelter. DHS reported to the Co-Neutrals in September 2017 that Laura Dester intended to hire what the agency reported to be 42 direct care staff, including two recreation staff and three child welfare specialists. However, the shelter director reported on April 9, 2018 that because of high turnover, there had been a very limited net gain of direct care staff. Further the new resident advocate and program
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coordinator positions that DHS promised in September 2017 were not filled until after the CoNeutrals’ order of March 5, 2018.
SPPU documented in January 2018 that the shelter “continues to struggle with not having enough staff to meet the needs of the youth, requiring staff to work numerous doubles in a row.” On March 16, 2018, SPPU documented that two youth were arguing in a cottage and staff wished to separate the youth to de-escalate the situation. However, since there were only two staff assigned to the cottage, staff were unable to separate the youth. SPPU documented some of the consequences of staffing shortages on staff morale, citing that shelter staff report being “exhausted, frustrated and unsupported in their work.” SPPU also documented that staff appear “overwhelmed” and “tired.”
In its investigations, OCA has also repeatedly documented that Laura Dester was understaffed and chaotic. Several investigations reported that supervisors often did not assist direct care staff with supervision of the children and when staff requested assistance from supervisors, particularly when children’s behaviors escalated, supervisors frequently did not respond until the incident was over. OCA reported that staff at Laura Dester was known to work double shifts, as long as 16 hours, which inhibited their ability to provide proper care to the children due to fatigue, and caused some staff to become short tempered and inappropriately react to the challenging behaviors of some children.
Despite repeated warnings from SPPU, OCA, the Governor’s liaison and the Co-Neutrals about unsafe conditions for children at Laura Dester, and an increase in referrals of abuse and neglect of children at the Center, DHS did not make good faith efforts to address the risks to child safety. From March 2017 thru February 2018, OCA substantiated seven distinct referrals of child maltreatment at Laura Dester involving 10 children in DHS custody. During the same period, DHS accepted 46 child maltreatment referrals that were either ruled out or unsubstantiated, and screened out an additional 53 referrals.
Under Section 2.14 of the CSA, the Co-Neutrals are granted the authority to require DHS to undertake and maintain diagnostic and remedial activities when the Department fails to achieve positive trending or begins to trend negatively in any area. In light of the agency’s performance with respect to child maltreatment in care, and grave concerns for child safety at Laura Dester, the Co-Neutrals required DHS on March 5, 2018 to cease any new placements at Laura Dester. Further, the Co-Neutrals required that DHS develop a transition plan to place all children out of the shelter by a date to be determined but not later than June 30, 2017. As additional referrals and substantiations of child abuse and neglect at Laura Dester surfaced after March 5, 2018, the Co-Neutrals filed with U.S. District Court Judge Frizzell a request to adopt the Co-Neutrals’ directive as a judgment of the Court, to which DHS objected. Judge Frizzell ordered on June 5, 2018, that “the Oklahoma Department of Human Services must,
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among other things, relocate the remaining children currently placed at the Laura Dester Children’s Center in Tulsa, Oklahoma to alternate, safe, needs-based placements by June 30, 2018.” (See Appendix F)
F. Caseworker Visitation Quality visits by the same caseworker with the same child is fundamental to achieve stable placements and timely permanency for children, provide opportunities to assess and address children’s safety and well-being, and support foster parents in their care of foster children. DHS reports on two performance areas related to caseworker visits: the frequency of caseworker visits, which is defined as the number of required monthly visits completed with children in care; and, the continuity of visits by the same caseworker. For frequency of visits, DHS reports on the following:
Metric 3.1: The percentage of the total minimum number of required monthly face-to-face contacts that took place during the reporting period between caseworkers and children in foster care for at least one calendar month during the reporting period.
Metric 3.2: The percentage of the total minimum number of required monthly face-to-face contacts that took place during the reporting period between primary caseworkers and children in foster care for at least one calendar month during the reporting period.
Regarding Metric 3.1, DHS reported that caseworkers made 102,032 (97.7 percent) out of 104,427 required visits with children during the reporting period of January 1, 2017 to December 31, 2017. DHS started strong with an original baseline performance of 95.5 percent of all required visits made. DHS has consistently shown in every report period performance that exceeds the Target Outcome of 95 percent for this metric. DHS’ performance this period remained the same as last period, which has been the highest performance outcome reported during this reform.
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Figure 22: Metric 3.1 – Frequency of Visits by All Workers

99%

97.1% 97.4% 97.5% 97.7% 97.7%

97%

96.3% 96.6% 96.4%

95.5% 95.7%

95.0%

95%

93%

91%

89%

87%

85%

Source: DHS Data
DHS’ consistent, strong performance on Metric 3.1 demonstrates DHS’ commitment to regular monthly visits between children and a caseworker. The Co-Neutrals conclude that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for Metric 3.1.
The second indicator, Metric 3.2, measures monthly required visits made by primary caseworkers only. To improve casework practice, DHS committed to end the use of secondary workers across the state by January 2014. During the current report period (January 2017 through December 2017), DHS reported that primary workers made 96,217 (94.9 percent) of the 101,378 required monthly visits with children in DHS custody. For monthly visits conducted by primary workers only, the baseline for DHS’ performance was 51.2 percent and the final target of 90 percent for this metric was due on June 30, 2016. DHS has surpassed the final target for this metric the last three report periods.

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Figure 23: Metric 3.2 – Frequency of Primary Worker Visits

100% 90% 80%

82.5% 74.1% 76.0% 77.2%

89.9% 92.2% 93.7% 94.6% 94.9% 90.0%

70%

60% 51.2%
50%

40%

30%

20%

10%

0%

Source: DHS Data
Through its ongoing, focused work to end the use of secondary workers, DHS has substantially shifted case practice by prioritizing the importance of having the same, primary worker meet with the same child each month. This enhanced practice supports better outcomes for children through consistent case planning by the same worker to secure a child’s placement stability, safety, and permanency. The Co-Neutrals conclude that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for Metric 3.2.
Performance Metrics for Continuity of Visits, Metrics 3.3a and 3.3b
The measure the Co-Neutrals use to assess Oklahoma’s progress on continuity of children’s visits with the same caseworker was staged in two phases. First, DHS reported on the continuity of visits over three months (Metric 3.3a).39 DHS is now in the second phase, reporting for the sixth time its performance outcomes on continuity of visits over six months (Metric 3.3b). Metric 3.3b measures the following:

39 DHS is no longer required to report on Metric 3.3a, which measured three month continuity of visits with the same primary caseworker.
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The percentage of children in care for at least six consecutive months during the reporting period who were visited by the same primary caseworker in each of the most recent six months, or for those children discharged from DHS legal custody during the reporting period, the six months prior to discharge.

DHS’ performance for this period continued to improve from the baseline that was set at 40.65 percent. For this reporting period from January 1, 2017 to December 31, 2017, DHS reports that 8,370 children required at least six consecutive visits. Of these 8,370 children, 5,238 children (62.6 percent) were visited by the same primary worker in their most recent six months in care. This represents a decline from last period when DHS reported performance on this metric at 63.3 percent, however, DHS remains in close proximity to the final Target Outcome of 65 percent and substantially above the starting baseline of 40.65 percent.

Figure 24: Metric 3.3b – Continuity of Primary Worker Visits Over Six Months

70%

62.90% 63.30% 62.60% 65%

59.20%

60%

49.60% 52.60%

50%

40.65%

40%

30%

20%

10%

0%

Baseline Jun-15 Jan-16 Jun-16 Jan-17 Jun-17 Jan-18 Target

Jan 13-

June 14

Source: DHS Data

DHS’ substantially improved performance on Metric 3.3b also reflects DHS’ commitment to end the use of secondary workers and to support and retain caseworkers through more manageable caseloads. This strengthens DHS’ efforts to ensure the same caseworkers perform visits each month with children in DHS custody more often. The Co-Neutrals find that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for continuity of visits over a six-month period.

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G. Placement Stability
Over the last year, DHS has worked to implement a number of strategies that were developed or approved at the beginning of 2017 to strengthen practices impacting placement stability outcomes for children in DHS custody. These strategies focused primarily on stabilizing children in their first placements, and included increasing the number of children who are placed in kinship homes as their first placement in care; improving supports and services to foster parents; and conducting ongoing reviews to understand where DHS needs to focus its efforts to improve placement stability.
During the current period, DHS undertook a number of efforts to improve how these new practices are being implemented throughout the state. As reported in the last Commentary, the Co-Neutrals presented some concerns regarding the level of detail and thoroughness of the department’s communications to the field on the expectations for staff to implement the new placement stability practices. As presented below, the department responded accordingly by enhancing trainings and guidance to reinforce accountability among staff, clarifying the processes and reporting requirements of the new practices, and reiterating the value and importance of these efforts to improve placement stability outcomes. As a result, DHS reported improved outcomes with respect to the implementation of these practices over the current period. However, as DHS recognizes, continued improvements are necessary to strengthen both the consistency and quality of these practices to reduce the number of placements children in DHS custody experience.
Performance Standards
The Co-Neutrals and DHS agreed to use the federal Adoption and Foster Care Reporting System (AFCARS) files and definitions for placement moves to measure children’s placement stability. This report reviews performance data for the period October 1, 2016 to September 30, 2017 for Metrics 4.1 a, b and c and Metric 4.2.
Performance Outcomes
For this report period, DHS’ performance improved marginally in three of the four placement stability metrics, while performance declined in the remaining metric, as detailed in Table 8 below. Metrics 4.1 a, b and c report on the number of children who experience two or fewer placements within different lengths of time in DHS custody (e.g., 0-12 months, 13-24 months, over 24 months), while Metric 4.2 reports on the number of children who experience two or fewer placements after their first 12 months in care.
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Table 8: Placement Stability Baselines, Targets, and Current Performance

Metric

Baseline Oct 2011 Sept 2012

Performance April 2015 March 2016

Performance Oct 2015 Sept 2016

Performance April 2016 March 2017

Performance Oct 2016 Sept 2017

Target 6/30/2016

4.1(a): percent of children in custody with 2 or fewer placements who are in care less than 12 months 4.1(b): percent of children in custody with 2 or fewer placements who are in care more than 12 months but less than 24 months
4.1(c): percent of children in custody with 2 or fewer placements who are in care at least 24 months
4.2: percent of children in care more than 12 months, with 2 or fewer placements after their 12 months in care

70.0%
50.0%
23.0% 74% (Apr.‘12– Mar.‘13)

73.1% 54.5% 29.7% 77.8%

75.2% 53.4% 30.6% 77.4%

76.0% 55.5% 30.2% 78.0%

76.6% 58.0% 28.6% 78.4%

88.0% 68.0% 42.0% 88.0%

Kinship as First Placement
DHS has made increasing the number of children whose first placement upon removal is in a safe kinship relative or kinship non-relative placement a key objective to improve placement stability for children in DHS custody. If a child welfare system determines that a child must be removed from their birth family, placing the child with relatives or families who are familiar to them is most often in a child’s best interest when such placements are determined to be safe and able to meet the child’s needs. In addition to reducing the unease or trauma that children can experience when placed in an unfamiliar home, DHS’ data analysis shows that children are more stable and experience fewer placement moves and disruptions when placed with kinship families. As such, DHS has made it a priority to increase the number of children placed with kinship families as part of its strategies to improve placement stability outcomes for children in DHS custody.
Starting with a focus on first placements, DHS developed guidance and strategies to enhance the department’s efforts to identify kinship placements early in a case, starting with gathering pertinent information from any person who calls the statewide Hotline to report suspected abuse/neglect and from the beginning of any investigation regarding abuse/neglect allegations for children living with their birth families. The overarching message to staff is that family

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engagement must be a priority through every step of the child welfare process and improving this practice will advance placement stability and other outcomes for children.
While placing children with kinship families has always been a priority, DHS’ placement data suggested that the department had missed many opportunities to make a child’s first placement with an available kinship family, as evidenced from a data analysis completed for DHS by the Annie E. Casey Foundation, which found that a large number of children were placed in a stable kinship home on their second or third placement after removal, not their first. To ensure that staff, particularly CPS investigators, have sought out and assessed all kinship placement options for children entering state custody, DHS established that in order for a nonkinship placement to be approved, a caseworker’s supervisor must document for a district director’s review and approval all efforts undertaken to identify a viable kinship placement, including the specific kinship placement options reviewed and ruled out. The supervisor is required to document all efforts made to locate a kinship placement on the Non-Kinship District Director Approval form and record these efforts and the district director’s approval in KIDS.40
Although the main focus of increasing kinship placements has been on children’s first placements, DHS requires a district director’s approval for all non-kinship placements, not only those requested for a first placement. Currently, DHS has not developed a mechanism to track and report data on how consistently caseworkers complete Non-Kinship District Director Approval forms. Further, it is not clear if district directors are appropriately approving requests for non-kinship placements and if caseworkers are sufficiently documenting their efforts to identify kinship families that can serve as placements. To ensure this recently established practice is being implemented at an increasing rate in the field, DHS should review its records to assess where improvement may be needed and what information may be gleaned from the completed forms to further improve on this practice. However, DHS’ data for children’s first placement type clearly shows that the department’s efforts to increase first kinship placements are achieving the intended result. As shown in Table 9 below, the percentage of children whose first placement is in a kinship home has improved significantly over the last year. DHS established baseline data for kinship first placements during the six-month period of July to December 2016, with 34.6 percent of children being placed in kinship homes as their first countable placement. Kinship first placements subsequently increased during the following two six-month periods to 38.5 percent (January to June 2017) and 44.6 percent (July to December 2017).
40 Before DHS makes a decision to remove and seek custody of a child, the department’s required practice is first to hold a child safety meeting (CSM) to assess if there remains any opportunity to maintain the child safely with their birth family with supports and services from DHS and the family’s available support system. If a CSM is held where a decision is made to remove a child and during the meeting kinship options are reviewed and determined not to be an option at that time, a district director’s approval for a non-kinship placement is not required.
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Table 9: Percent of Children Whose First Countable Placement is a Kinship Home41

Month
Baseline: Jul - Dec 2016 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17 Jan - June 2017 Jul-17 Aug-17 Sep-17 Oct-17 Nov-17 Dec-17 July - Dec 2017

Children Placed in Kinship as 1st Placement
878 122 190 206 162 151 170 1,001 176 240 158 149 136 150 1,009

Children Removed during the Month
and Entered in Countable Placement 2,540 399 443 517 432 397 410 2,598 398 489 373 357 344 303 2,264

% of Kinship as 1st Placement
34.6% 30.6% 42.9% 39.8% 37.5% 38.0% 41.5% 38.5% 44.2% 49.1% 42.4% 41.7% 39.5% 49.5% 44.6%

Source: DHS Data

During this period, DHS took a number of steps to support the earlier identification of viable kinship placements to ensure children did not, whenever possible, go to non-kinship homes while waiting for kin to be identified. As discussed in the Co-Neutrals’ previous reports, there was a history at DHS of inconsistent practices and communication to the field that lead caseworkers to understand that they could not request an initial assessment of a prospective kinship family until the child needing placement was in DHS’ physical and legal custody. This created a barrier to kinship as a first placement as DHS started its initial kinship assessment process too late, such as when a child was in immediate need of a placement.
In December 2017, the child welfare director issued a communication to all child welfare staff confirming that staff can and should request that the resource family unit begin assessing kinship families identified for possible placement if DHS has determined that a child cannot safely remain in their own home and DHS has initiated the process to request custody of the
41 Countable placements include foster care, kinship, shelters, TFC, group homes, and tribal homes. Examples of placements that are not countable include inpatient, hospitals, or trial reunification.
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child. In the same communication, the director informed all caseworkers that if it appears a determination could be made at a Child Safety Meeting to remove a child from their own home and a kinship family has not yet been identified, the CPS investigative worker should invite the local foster care recruiter to observe and listen for possible kinship options in the event removal is deemed necessary. Further, foster care recruitment staff was instructed to use the guidance outlined in the Actively Seeking Kinnections (ASK) process to continue a follow up conversation with any family participating in the Child Safety Meeting to discuss further possible kinship options for the child.
Efforts to Stabilize First Placements
As discussed in the Co-Neutrals’ last report, DHS has focused on two specific efforts to help stabilize a child’s first placement in a foster home, which includes foster homes of all types. These are the two-day call and the Initial Meeting. Following a child’s first placement in care, DHS now requires caseworkers to call the foster family within two days of placement as a mechanism to help ensure a child’s needs are being met and that the resource family feels supported. This is referred to as the two-day call.
Further, following a child’s first placement in care, DHS has had a standing requirement that an Initial Meeting is held within 10 days after a permanency worker is assigned to a child newly placed in DHS custody.42 The meeting is to include birth parent(s), the foster family, the child’s permanency worker, the foster family’s resource worker and the CPS worker, who is also responsible for scheduling and coordinating the meeting. DHS now includes a requirement that during the Initial Meeting, DHS must develop a child and resource family support plan, which includes any services and/or supports identified as important to ensure stable placements.
For these practices, which DHS identified as core strategies to improve placement stability, the department established baseline data to assess how implementation of these practices improves over time. For the two-day call, DHS reported a starting baseline for the threemonth period of February to April 2017 (only two months after this practice began) with 13.2 percent of the newly required calls completed. For the last three months of this period (October to December 2017), DHS reported that 53 percent (528 out of 1,004) of the two-day calls were documented as complete.
For the same three-month baseline period (February to April 2017), DHS reported that only 10.5 percent of the required Initial Meetings were completed, which confirmed DHS’ earlier
42 Previously the requirement was for the initial meeting to be held within seven days after the permanency worker is assigned to a child newly placed in custody and during this report period, DHS changed it to within 10 days.
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assessment that these meetings, although a long-time requirement, had not become a common practice in the field. In comparison, from October to December 2017, DHS reported that 53 percent of the required Initial Meetings were documented as complete. While work remains for DHS to further increase implementation of these practices, the department has clearly shown progress to advance the strategies that it believes will further improve placement stability outcomes.
As with other core strategies and practices that DHS has implemented to improve child outcomes in a performance area, implementation of the practice on its own is just one component. Ensuring strong case practice is equally important. To assess the quality of DHS’ Initial Meetings, the Co-Neutrals reviewed the contact notes in KIDS for 50 Initial Meetings completed during the month of December 2017. The review focused on documentation of two key areas of Initial Meetings: 1) were the needs of foster parents’ discussed and addressed; and, 2) was a visitation schedule established, when appropriate, for the children to have regular contact with their biological parents.
Although the Co-Neutrals found limited documentation in KIDS from the 50 Initial Meeting contact notes reviewed, the records showed that in the majority (28) of the cases there were references to a discussion about the child’s needs, likes or habits or the foster parents sharing that they were already familiar with the child. In 12 cases, the foster parents indicated that everything was going well and there were no unmet needs at that time. In 20 cases there were notes indicating a discussion of the foster parents’ needs was had during the Initial Meeting, with seven of these cases documenting specific supports identified and planned for the foster parents. During focus group discussions in the field, caseworkers shared with the Co-Neutrals that foster parents often are not yet aware, understandably, of the supports they may need when a child is newly placed with them. This is why it is important for DHS’ assigned permanency and foster care caseworkers to continuously assess the needs of foster parents to support placement stability. DHS has committed to such an ongoing assessment through the monthly and quarterly contacts that resource workers must complete with their assigned foster families and the monthly contacts required (at minimum) between permanency caseworkers and foster families.
DHS identified that ensuring frequent and regular visitation between a child in custody and their biological parents, when appropriate, is key to help advance not only permanency but also placement stability. The Co-Neutrals found that in 22 of the 50 initial meeting notes reviewed, plans for child-parent visitation were discussed, including frequency and transportation. In seven of 50 cases, child-parent visitation was not discussed, either because the birth parents were not present for the discussion or would not be available for visitation such as when the parent(s) is incarcerated.
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As DHS continues to improve the completion rate of these Initial Meetings above 53 percent, focus must also remain on improving the quality of the discussions around identifying, confirming and documenting foster parent and child support needs and visitation plans. The child welfare director sent a communication to all child welfare staff on December 21, 2017 reinforcing the department’s Initial Meeting practice and the need to use the established Initial Meeting guide to develop a Child and Family Support Plan and to document the information in KIDS. (See Appendix G) DHS must also ensure that all caseworkers required to participate in the meetings are present43 and understand the importance of attending these meetings, as well as their responsibilities during and following the meetings to support foster parents.
Further, the Co-Neutrals understand DHS’ priority at this time is to focus on firmly establishing quality and consistent practices for these two selected placement stability strategies (two-day call and Initial Meeting). However, these strategies are currently required only for a child’s first placement after removal and not any subsequent family-based placements. As such, DHS must assess how these strategies should be applied to any new family-based placement for a child to support foster parents in the same or modified way for all new placements, not just the first, in order to further advance placement stability.
Assessments of Placement Stability
To support more stable placements for children in DHS custody, in January 2016, DHS began implementation of the monthly “Two-Moves” tracking report. The original focus of the report centered on those children who experienced a move from their second to third placement each month. For each of the children who experienced a move to their third placement in a given month, DHS required the child’s permanency caseworker to document in the Two-Moves report the reason the child was moved, the specific efforts undertaken to prevent the child’s placement move, and the efforts taken to collaborate with the foster family’s resource worker to avoid a third placement. During this period, DHS changed the focus of this report (now referred to as the “One-Move” report) to all children who moved from their first to second placement.
The objective of the One-Move report is two-fold: first, it establishes an accountability process by requiring that permanency workers and their supervisors assess if children who moved to their second placement, as well as their foster families, received the appropriate supports and services to help prevent the first placement move, and second, it focuses workers on ensuring the child’s new placement is prepared for and supported in caring for the child to secure
43 The Co-Neutrals found that only in eight of the 50 Initial Meeting records reviewed, was it specifically noted that all the required caseworkers participated in the Initial Meeting.
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stability in the second placement. DHS reports that the children directly targeted by DHS’ OneMove report are those included in the Metrics 4.1a (children in care for less than 12 months who are in their first placement) and 4.2 (children who remain in their same or “first” placement they were in when they entered their 13th month in care).44
The One-Move report from December 2017, the last month of the current period, showed that statewide a total of 145 children exited their first placement. As the chart below illustrates, the primary reason children exited their first placement during the month of December was to be placed in a kinship home (27 percent). The other most common reasons for children exiting their first placements were: foster parents’ request due to personal issues (22 percent) and foster parents’ being unable to work with a child’s behavior (15 percent).
Table 10: First Placement Exit Reasons, December 2017

Reason Child Moved from 1st Placement
Placement in kinship home Provider requested due to personal issues Provider unable to work with child's behavior Placement with sibling Placement in lower level of care Pending investigation Placement closer to family Other Grand Total

# of Children
39 32 22 21 14 11 3 3 145

Percentage
27% 22% 15% 14% 10% 8% 2% 2% 100%

Central to DHS’ work related to the One-Move report has been reducing the number of children who experience placement disruptions due to foster parents requesting that a child be moved due to behaviors. To best learn from those cases where children disrupt from placements due to behaviors, supervisors call the former foster parents of each child who experienced a disruption from their first placement to understand from foster parents what specific child behaviors led to the disruption and what actions, if taken by DHS, could have prevented the disruption.

44 Metric 4.2 measures the percent of children who experienced two or fewer placement settings after their first 12 months in care. Since this metric functions as a re-set for children who during their first year in care experienced more than two placements, DHS included these children in their One-Move report efforts in order to work toward the stabilization of the child’s placement upon entering their 13th month in custody.
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From these supervisor calls, DHS has collected information from foster parents that, if systematically addressed, could better support foster families in meeting the needs of children with behavioral challenges and prevent placement disruptions. For example, One-Move reports from this report period documented the following actions, reported by foster parents, that, if taken by DHS, might have prevented the placement disruption:
x Provide better information about a child’s behaviors and needs prior to placement; x Improve communication between foster parents and caseworkers, and between
different caseworkers in the home; x Place fewer children in foster homes (particularly fewer children two years of age and
younger); and, x Provide more timely and improved access to services, particularly in rural counties.
In other cases, the One-Move reports indicate that no additional actions, if taken by DHS, would have prevented the disruption. For example, some foster parents reported that caseworkers took all appropriate actions to support the home and child but due to the severity of the child’s behaviors, it was necessary for the child to be moved from the home. Other foster parents reported that they declined caseworkers’ attempts to put services and supports in the home and thereby it is unclear what additional actions, if any, caseworkers could have taken to prevent the disruption.
To further inform DHS’ efforts to prevent placement disruptions due to child behaviors, each regional placement stability lead conducts a case record review of two disruption cases a month. These in-depth case record reviews showed both the strengths and weaknesses of caseworkers’ case practice to support foster homes that experienced a placement disruption due to a child’s behaviors. In particular, the review found that in some cases, caseworkers appeared to: initiate services and supports for children and foster parents; use monthly visits to address any needs/concerns of foster parents; and, respond timely to requests made by foster parents. The review also found that in other instances, caseworkers did not appear to provide adequate support to foster families and children. For example, some caseworkers did not consistently use monthly visits to assess and address the needs of foster parents or children; services and supports were not timely initiated or offered to foster parents; and, foster parent concerns or requests were not followed up on by caseworkers.
For those children who disrupted from their placement due to behaviors, DHS has committed to ensuring a child’s second placement receives the appropriate preparation, services and supports to prevent a subsequent placement disruption. Beginning in December 2017, DHS instructed staff that if a child is moved from their first placement due to behaviors and the second placement is a kinship or traditional foster home, a Systems of Care (SOC) referral should be made in order to ensure the child’s new placement is adequately supported to care
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for the child and his or her needs. DHS also sent a notification to all resource parents informing them about SOC services and the department’s intended plans to support them and children placed with them through SOC wraparound services. DHS reports that through SOC, foster parents and children are supported through wraparound services that seek to address the needs of the child and family. An SOC referral may not be required if a child is already receiving services or a caseworker prefers to establish services through a known and credible provider in the local area where the child is placed. DHS has revised the One-Move report in order to track if these referrals are being made, if appropriate.
As noted in the TFC section of this Commentary, DHS will need to continue to assess with its partners at ODMHSAS how best to match foster families and children in custody to these and other necessary services to achieve the goals set for improved stability and well-being for the child in custody and their caregivers.
Focusing on DHS’ priority to increase the number of children whose first placement is in a kinship home, DHS has revised its One-Move report to include for those children who are moved from their first placement into a kinship placement the barriers for why this kinship placement was not secured as the child’s first placement. Some identified barriers documented in the One-Move report include:
x A lack of upfront family identification; x Personal issues of a kinship family prevented placement at the time of a child’s removal;
and, x Delays in foster care’s approval of a kinship home.
DHS’ records also show that for a number of these children, their first placements were in kinship homes; however, due to various reasons, the initial kinship placement was not stable, which resulted in the child being moved to a second kinship placement.
Over this period, DHS has both strengthened and expanded its One-Move report to support its efforts to improve placement stability. Through its One-Move report, DHS is gathering valuable information on the specific case practice areas that need to be strengthened to prevent children from experiencing multiple placements. Through this reporting structure, DHS is positioned to, and must, transfer its findings from the One-Move report to efforts to continue to improve children’s placement stability.
Enhanced Efforts to Improve Implementation of Core Strategies
As discussed in the Co-Neutrals’ last Commentary, there were deficiencies in DHS’ initial implementation of its placement stability core strategies. These deficiencies were evidenced by the findings of the Office of Performance Outcomes and Accountability’s (OPOA) analysis of 48
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in-depth case reviews last period, which showed that the enhanced placement stability practices were not yet being performed consistently and at a high quality. In response to these findings, DHS, in August 2017, provided mandatory Guided Application Practice (GAP) trainings for supervisors in each region. The training focused on how best to support foster parents, the importance of kinship first placements, and the role of supervisors in advancing caseworkers’ placement stability practice. DHS reports that after the completion of the GAP trainings, their data indicated that the occurrence of the enhanced placement stability practices had not improved as hoped. As a result, DHS identified that an additional training was necessary to address remaining barriers to caseworkers completing as required the new practices and protocols, including the two-day call and Initial Meetings. In November 2017, the placement stability leads delivered the enhanced placement stability training to all regional deputy directors, district directors, and field managers. DHS reported that district directors and field managers trained all caseworkers by January 2018.
In addition to these efforts, the child welfare director issued two instructional memos to staff in November 2017 which contained a detailed overview of each of the placement stability strategies, case practice expectations of each, and the roles and responsibilities of caseworkers (Hotline, CPS, and Permanency) to identify and assess potential kinship placements for children in DHS custody. Lastly, to support caseworkers’ real-time tracking of the placement stability practices they need to complete for new child removals, DHS developed a new report (yi867b) this period. The new report runs each night and offers caseworkers a daily tracking tool to ensure they timely complete each new practice. Once the new practices have been completed and properly documented, the case no longer appears on the report. This new report supplements DHS’ initial tracking report (yi867), which runs on the 20th of each month and is used as a management tool to assess DHS’ progress monthly towards increasing the rate of completion of each of the placement stability practices.
Since the beginning of this reform effort, DHS has made some outcome improvements in all four placement stability measures; however, progress has been incremental and not always sustained. For Metric 4.1c, which measures the placement stability for children who have been in DHS custody for the longest period of time, DHS reported for the second consecutive period a decline in performance. The Co-Neutrals acknowledge and appreciate the value of DHS’ efforts to achieve stability for children in their first placements. However, for most children reviewed under 4.1c, these efforts cannot be applied as these children have already experienced one placement move. For these children, who have been in care for an extended period of time (at least 24 months), DHS must intensify its efforts to ensure this population of children achieve long-term stability as the department works toward achieving their permanency.
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It is important to highlight that children reviewed under Metric 4.1c are automatically reported as non-compliant for this metric if they were previously reported as non-compliant in either Metric 4.1a or b, or both, and still remain in care for at least 24 months as the same standard of compliance (children must have two or fewer placements) is applied to all three metrics (4.1a, b, c), despite a progressive increase in the length of time children have been care (e.g., 0-12 months, 13-24 months, over 24 months).
The Co-Neutrals completed a more in depth quantitative review of the children who were eligible for placement stability measured under Metric 4.1c (i.e., prior to the reporting period, these children had two or fewer placements). The Co-Neutrals identified the percentage of children who entered Metric 4.1c for this and the previous three report periods who were eligible for placement stability compliance because they had experienced two or fewer placements prior to the entering at least their 24th month in care.
As shown in Table 11 below, for the current period, 4,646 children were reviewed under Metric 4.1c. At the start of the current period, only 33 percent (1,529) of these 4,646 children in the cohort had two or fewer placements and were thereby eligible to be in compliance for the metric should DHS maintain their placement stability during the current period. The majority of these children (3,117 or 67 percent) had already experienced two or more placements prior to the start of the period and therefore was already out of compliance on Metric 4.1c. The CoNeutrals’ review found that DHS maintained the placement stability of 87 percent of the 1,529 children who entered the Metric 4.1c cohort with two or fewer placements. This more detailed data review of Metric 4.1c shows that DHS achieved placement stability for a higher percentage of children this period when compared to three periods ago (April 1, 2015 to March 31, 2016), increasing from 80 to 87 percent of eligible children maintaining two or fewer placements. DHS experienced a one percent improvement (86 to 87 percent) from the last report period. This closer review of Metric 4.1c data informed the Co-Neutrals’ determination of its good faith finding on this measure, despite DHS’ performance outcome showing a decline in performance from last period. DHS will need to focus on improving performance toward the established Target Outcome which, in part, includes increasing the percentage of children reviewed under Metric 4.1c who enter the measure as eligible for compliance. Placement stability efforts and improved outcomes demonstrated in Metrics 4.1a and 4.1b are key to helping DHS achieve this goal.
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Table 11: Measure 4.1 C, Number of Children Eligible, Performance, and Total Cohort45

4.1 C
Number of children eligible for numerator at start of FFY (i.e. had 2 or fewer placements at start of FFY) DHS Performance (Numerator) Cohort Total (Denominator) Percent of Children Effected

Current
Oct 1, 2016 to
Sep 30, 2017

Report Period

Prior

Two-Prior

Apr 1, 2016 to
Mar 31, 2017

Oct 1, 2015 to
Sep 30, 2016

Three-Prior
Apr 1, 2015 to
Mar 31, 2016

1529

1771

1899

2106

1331 4646 87%

1524 5060 86%

1670 5492 88%

1687 5681 80%

DHS over the last year has dedicated more focus and attention to establish case practices, primarily focused on children’s first placement in DHS custody, to increase placement stability and reported some improvement in the other three placement stability metrics. The CoNeutrals find that DHS made good faith efforts to achieve substantial and sustained progress toward the Target Outcomes for all four placement stability measures.

H. Permanency
In order to achieve permanency for children in DHS custody, the department has implemented core permanency strategies for children with the goal of reunification; for children who are legally free with a goal of adoption but do not yet have a permanent family identified; for children who are legally free and have an identified permanent placement and for older legally free youth without an adoption goal at risk of aging out of foster care.
As presented in greater detail below, the Co-Neutrals find that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcomes for 10 of the 11 permanency metrics. The Co-Neutrals have determined that for this report period DHS has not made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for Metric 6.2a, timely permanency for children within 12 months of entering DHS custody, which is also the sole permanency performance area for which the department has not achieved substantial or sustained progress toward the Target Outcome during this report period or throughout the entire reform.
45 Note that these numbers do not exactly match the numbers in the reports because of different data sources.
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Timeliness of Children’s Permanency, Metrics 6.2 (a-d)
The four 6.2 Metrics (a, b, c and d) measure DHS’ progress to achieve timely permanency for children who entered DHS’ custody at a designated time and who achieved permanency in 12, 24, 36 or 48 months from the child’s removal from their family. For more than two years, DHS has worked to implement the Permanency Safety Consultation (PSC), its primary core strategy, to achieve timely permanency for children, with an emphasis on those children with the goal of reunification. DHS’ efforts to implement PSCs are discussed below.
Permanency Safety Consultation (PSC) to Expedite Reunification
PSCs are structured case conferences scheduled to occur at regular intervals and are designed to assess through a team approach the viability of a child’s safe reunification with their family. PSCs are required to be conducted for every child whose permanency plan is reunification.
PSCs begin 90-days after a child’s removal from his or her birth family to identify, address and monitor opportunities for safe reunification as well as ongoing concerns preventing a child from returning to the parental home. As part of a PSC, the participating team records a recommendation of safe or unsafe, indicating if a pathway for safe reunification has or has not been identified. When reunification is determined to be possible, a plan of action is developed to move the child timely back home with their family, with a follow up PSC occurring every 30 days until the child is placed in trial reunification. For PSCs that conclude with an unsafe finding, subsequent PSCs are required at least every 90 days as long as reunification remains the child’s permanency goal. DHS established this schedule for ongoing PSCs for all children with a goal of reunification at the conclusion of the last report period. Prior to setting this schedule, DHS focused first on ensuring that all children with a goal of reunification had at least one PSC, through phased implementation of the PSC practice throughout the state, while the department simultaneously developed a Continuous Quality Improvement process and proceeded to implement PSCs statewide by October 2016.
The Co-Neutrals observed in DHS’ PSC data report (Y1838) that the department completed between July 1 and December 31, 2017 a total of 6,140 PSCs for 4,203 unique children, as some children received more than one PCS within the period, which is an indicator that the PSC process has become a central part of DHS’ statewide permanency practice. As discussed in the previous Co-Neutral Commentary, DHS developed a PSC Guidebook and Fidelity Review Tool to support staff in building consistent and quality PSC casework practice. The PSC guidebook describes the responsibilities and expectations for every DHS staff person who participates in a PSC, including the child’s caseworker, the caseworker’s supervisor, the district director, and permanency program staff from DHS state office. The PSC guidebook also provides a detailed explanation of the activities caseworkers must complete and safety questions the worker must
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review to prepare for an effective PSC and support a thorough assessment of any safety concerns that have prevented reunification to date. DHS has also established a leadership structure and process to conduct quality assurance for the PSC practice. The designated statewide PSC coordinator participates in consultations in districts of every region to review the quality of the PSC process and, in individual cases, assists staff as needed to assess if safe reunification is possible. The PSC coordinator further focuses on the quality of the PSCs by conferencing with district directors before participating in a PSC in their area to discuss progress and challenges with the PSC process, as well as practice trends or barriers to reunification that have surfaced through the PSCs in their district. The coordinator further conducts a debriefing with district directors and supervisors following a PSC session and maintains a log of issues identified during the pre-calls and debriefings. The PSC coordinator and designated PSC regional leads also confer to review completed PSC tools to determine if there are systemic practice concerns or other barriers DHS may need to address to improve permanency outcomes.
DHS has implemented statewide the PSC process and practice with attention to ongoing quality improvement. However, by the end of the report period, the PSC process had not yet shown to have a measurable, positive impact on permanency outcomes achieved for children who have been in DHS custody within one year of removal as measured under Metric 6.2a. As the CoNeutrals have previously commented, it is insufficient for DHS to continue to rely primarily on a singular strategy to impact timeliness to permanency, particularly when, over the course of numerous reporting periods, the strategy has not helped the department achieve substantial and sustained progress toward the Target Outcome. The Co-Neutrals have repeatedly extended the benefit of the doubt to the department with respect to its efforts to achieve permanency pursuant to Metric 6.2a, but at some point, progress must be evident and the CSA anticipates some positive trending toward the Target Outcome. The department has maintained that its implementation of the PSCs would improve permanency for the shortest-staying children, reflected in the Metric 6.2a measurement, and would remain its primary strategic effort. After more than five years, DHS’ performance on Metric 6.2a remains worse than it was at the beginning of this reform, and is headed in the wrong direction. DHS must assess its performance for these children, diagnose the barriers to permanency for short-staying children and implement measures to achieve substantial and sustained progress toward the Metric 6.2a Target Outcome.
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Permanency Outcomes - Timeliness
The following summaries and tables detail the baselines, performance to date and targets for each of the 6.2 Metrics.
Metric 6.2a, Permanency within 12 months of removal: DHS reported that of the 2,512 children who entered foster care between April 1, 2016 and September 30, 2016, 788 children achieved permanency within 12 months of their removal date. This represents a permanency achievement rate of 31.4 percent for Metric 6.2a, which is a decrease of 1.7 percent from the previous period. The Target Outcome is 55 percent. DHS has not made substantial or sustained progress on this measure and has not yet achieved during any period of this reform performance above the starting baseline of 35 percent.
Of the 2,512 children reviewed in this cohort, 598 (24 percent) were reunified, 73 (3 percent) were adopted and 117 (5 percent) achieved permanency through guardianship or custody with a relative.
Figure 25: Metric 6.2a – Permanency within 12 Months of Removal

60.0% 50.0%

55.0%

40.0% 30.0%

35.0% 31.8% 28.9% 28.2% 27.2% 28.2% 30.3% 30.6% 33.1% 31.4%

20.0%

10.0%

0.0%

Source: DHS Data
In the sixth Commentary issued in April 2016, for the report period of October 2014 through September 2015, the Co-Neutrals found for the first time that DHS had made good faith efforts
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to achieve substantial and sustained progress toward the Target Outcome for Metric 6.2a. DHS’ performance outcome was 28.2 percent, as shown in the Table above. At that time, this represented a small, one percent increase from the prior period and performance remained below the baseline and far from the Target Outcome. However, despite DHS’ low performance for Metric 6.2a, the Co-Neutrals made a good faith finding based on DHS’ efforts to systemically implement the statewide PSC process, which the department reported was beginning to contribute to positive permanency results.
The Co-Neutrals, in the three subsequent reporting periods, determined that DHS’ efforts to achieve substantial and sustained progress toward the 6.2a Target Outcome rose to the level of good faith despite DHS’ performance remaining below the baseline, as performance showed moderate, incremental progress while DHS continued to implement the PSC process statewide. The Co-Neutrals recognized that it would take time for DHS to implement a new statewide permanency practice and for the potential impact on permanency outcomes to be evidenced. In each of the three report periods, progress, though modest, toward the Target Outcome was evident.
In the current report period, however, DHS did not sustain the progress previously achieved, with performance declining from 33.1 percent in the previous period to 31.4 percent in this report period. In fact, in this report period, not only did performance decline, it remained below the baseline of 35 percent and further from the Target Outcome of 55 percent.
The Co-Neutrals continue to recognize the value of PSC as a core strategy to assess the viability of timely and safe reunification. However, DHS’ efforts to implement and improve the quality of the PSC process are not adequate to make substantial and sustained progress toward the 6.2a Target Outcome. DHS must also address barriers to timely family reunification, on both an individual case and systemic level, which DHS identified recently in a CQI assessment of 125 permanency cases; in recent collaboration with court system partners; and during the many PSCs that have been completed over the past several report periods. Some of these challenges are described below.
Challenges to Timely Reunification
DHS reports that it has made concerted efforts over the last three years to prevent the removal of children from their families. As presented in the Table below, DHS’ data shows a significant decrease in the number of children removed between fiscal year SFY14 with 6,078 removals and SFY15 with 5,328 removals. For the following two years, the number of children DHS removed from their families remained fairly constant with 5,143 removals in SFY16 and 5,158 in SFY17. Between the last two state fiscal years DHS experienced a decrease in removals, going from 5,158 in SFY17 to 4,639 during SFY18. This reduction has not yet resulted in any significant
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decrease in the number of children reviewed in Metric 6.2a. The population of children included in the denominator for Metric 6.2a increased from 2,340 in the last reporting period (April 2016 to March 2017) to 2,512 in the current federal fiscal year report period (October 2016 to September 2017). For the next reporting period under review for 6.2a (April 2017 to March 2018), the denominator is 2,375.46

Table 12: Total Number of Children Removed During the SFY14-18

State Fiscal Year SFY14 SFY 15 SFY16 SFY17 SFY18

Total Number of Children Removed 6,078 5,328 5,143 5,158 4,639

DHS reports that it is focusing more on averting the need for removal and addressing identified safety threats through the development of statewide prevention services. These services are provided to families when it is determined that risk factors can be safely addressed while the child remains living at home. DHS reports that prior to the development of these prevention services many more children would have been taken into custody while staff worked to create and implement a service plan, after which children could be returned home. Many of those children, as DHS reports, would have experienced shorter lengths of stay in custody while service plans were developed. Now, however, according to DHS, those children remain at home with prevention services in place. The department indicates that children who now experience removal are those whose parents present with more complex, severe challenges and cannot safely remain home with services. DHS reports that, for these children, it takes longer to address the serious issues their families confront and, as a result, they experience longer lengths of stay, having an impact on 6.2a performance.
DHS also reports that there have been challenges, at times, to obtain courts’ approval to reunify children or to place a child in trial reunification when DHS recommends it is safe to do so. To address these issues, DHS initiated in May 2017 a court improvement project (CIP) team in three jurisdictions (Adair, Pottawatomie, and Canadian counties) to improve exits to permanency within 12 months. The teams, which include DHS supervisors and district directors, judges, assistant district attorneys, children’s attorneys and other community
46 The data for child removals and the 6.2a denominator referenced here are for state fiscal years and federal fiscal years, respectively, and not the exact same time periods.

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partners, has begun to review 12 months of permanency data for a cohort of children entering care from October 1, 2017 through March 31, 2018. The teams will track and analyze outcome data from the identified cohort in order to develop action plans to advance timely permanency. The Co-Neutrals will report in future Commentaries on the results of progress made by the CIP team after DHS provides information regarding the results of the data analysis.
As reported in the Co-Neutrals’ last Commentary, DHS conducted during this review period a quantitative and qualitative analysis of permanency trends for children in DHS custody through an assessment of 125 cases utilizing Child and Family Services Review (CFSR) protocols for the period of October 2015 through March 2016. The analysis is based on a more in-depth review of permanency related items identified in the Child and Family Services Reviews (CFSR) as needing improvements as well as a review of 234 PSCs completed between October 2016 and March 2017. DHS analyzed that the “lack of quality engagement with parents and families and assessing their needs is a reoccurring theme found throughout the study.” The study showed that another practice area needing significant improvement is the frequency and quality of child visits with their birth parents. DHS also reported that the PSC feedback process observed deficiencies in these same practice areas related to engagement with a child’s birth family and the quality and frequency of child-parent visits, both of which are essential to support reunification.
As discussed in other areas of this Commentary, DHS developed during calendar year 2017 a new Supervisory Framework designed to improve practice and child outcomes statewide, primarily in the areas of permanency, maltreatment and placement stability. The framework, which DHS tested in three districts this period, sets forth expectations and includes tools for supervisors to regularly and effectively assess and guide case practice in the field. The framework focuses, in part, on the “ongoing assessment of child safety and application of the safety threshold in determining safe reunification based on findings from the PSCs.”
The Co-Neutrals will report in future Commentaries on DHS’s efforts to address challenges identified above and its work to implement strategies to impact timely permanency and achieve substantial and sustained progress toward the permanency Target Outcome for 6.2a.
Metric 6.2b, Permanency within two years of removal: DHS reported that of the 1,793 children who entered foster care between April 1, 2015 and September 30, 2015 and stayed in foster care for at least 12 months, 961 children achieved permanency within two years of their removal date. This represents a permanency achievement rate of 53.6 percent for Metric 6.2b, and an increase of 4.6 percent since the last report period. The starting baseline for this metric was set at 43.9 percent and the target is 75 percent.
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Of the 1,793 reviewed in this cohort, 446 (25 percent) were reunified, 434 (24 percent) were adopted and 81 (five percent) achieved permanency through guardianship or custody with a relative.

Figure 26: Metric 6.2b – Permanency within 2 years of Removal

80.0%

75.0%

70.0%

60.0% 50.0% 40.0%

53.6%

49.0%

43.9%

45.6% 44.0%

41.0% 38.8% 37.4% 38.6% 38.8%

30.0%

20.0%

10.0%

0.0%

Source: DHS Data
Over the last two report periods, DHS’ performance for this measure has increased by almost 10 percent. Over the last four periods, the percentage of children in the reported 6.2b cohorts who achieved permanency through reunification remained steady between 23 and 25 percent. However, the percentage of children who were adopted increased from 17 percent two periods ago to 24 percent this period.47 DHS’ work to achieve timely permanency through adoption, when reunification is determined no longer viable, has allowed DHS to make substantial
47 In the September 2013 baseline data for this measure, 22 percent of children in the cohort achieved permanency through reunification, which holds fairly constant with the outcomes of 23 to 25 percent of children being reunified during the last four report periods. The data also showed 19 percent of children in the baseline period achieved permanency through adoption, compared to 17 to 24 during the last four report periods, with the current period at 24 percent achieving adoption within 12 to 24 months of entering care. Adoption outcomes within this measure have shown a significant increase.
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progress over the last three report periods. For this report period, the Co-Neutrals find that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for Metric 6.2b.

Metric 6.2c, Permanency within three years of removal: DHS reported that of the 989 children who entered foster care between April 1, 2014 and September 30, 2014 and stayed in foster care for at least 24 months, 633 children achieved permanency within three years of their removal date. This represents a permanency achievement rate of 64 percent for Metric 6.2c and an improvement of 8.3 percent since the last report period. The Target Outcome is 70 percent and the baseline for this metric was set at 48.5%.

As with the previous measure (Metric 6.2b), DHS’ practice to achieve permanency through adoption has improved over the last several periods for the cohort of children reviewed in this measure, 6.2c. For this metric, permanency was achieved most often through adoption. During this report period, 454 (46 percent) children in the cohort of 989 were adopted and 152 (15 percent) were reunified with their families. In the baseline data for this measure, 33 percent of the cohort children were adopted, which has since significantly increased to 46 percent.

Figure 27: Metric 6.2c – Permanency within 3 years of Removal

80.0% 70.0% 60.0% 50.0% 40.0%

70.0% 64.0%

48.5% 46.9% 43.7%

47.5% 50.5% 53.5% 55.6% 55.7%

37.4%

30.0%

20.0%

10.0%

0.0%

Source: DHS Data
As depicted in the Figure above, DHS has been approaching steadily the established Target Outcome for Metric 6.2c. The Co-Neutrals find that DHS had made good faith efforts to achieve substantial and sustained progress toward the Target Outcome.
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Metric 6.2d, Permanency within four years of removal: DHS reported that of the 482 children who entered foster care between April 1, 2013 and September 30, 2013 and stayed in foster care for at least 36 months, 264 children achieved permanency within four years of their removal date, primarily through adoption. This represents a permanency achievement rate of 54.8 percent, and despite a slight decrease of 0.2 percent from the last period when the department met the target, DHS remains very close to the Target Outcome set at 55 percent. The Co-Neutrals find that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcome.
Figure 28: Metric 6.2d – Permanency within 4 years of Removal

60%
50% 46.6% 48.5%

55.3% 55.0% 54.8% 55.0% 51.3% 49.6%

42.6% 39.3%
40%

32.7%

30%

20%

10%

0%

Source: DHS Data
Children’s Re-entry to Foster Care within 12 Months of Exit, Metric 6.3 Metric 6.3 measures how well DHS ensures that children who achieve permanency remain with their permanent families and do not re-enter foster care in a short period of time. Specifically, Metric 6.3 measures re-entry to foster care within 12 months of a child’s discharge to permanency (not including adoption) in the 12-month period prior to the reporting period. The baseline for this metric is 10.3 percent of children re-entering care and the final Target Outcome is no more than 8.2 percent of children re-entering care. For this period, DHS
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reported that of the 3,004 children who discharged to permanency (not including adoption) between October 1, 2015 and September 30, 2016, 187 children re-entered care within 12 months, which represents 6.2 percent of child re-entries, DHS’ best performance to date on the measure, and progress of 1.1 percent since the last report period. For this report period, DHS met and exceeded the final Target Outcome of 8.2 percent, representing the second consecutive period that DHS has exceeded the Target Outcome for this measure. The CoNeutrals find that DHS made good faith efforts to achieve substantial and sustained progress for Metric 6.3.

DHS attributes the requirements of PSC practice, including the assessment and documentation of safety prior to reunification and the provision of services and supports to families during trial reunification, as key efforts leading to improved performance outcomes and reduced child reentries into the state’s custody.

Figure 29: Metric 6.3 – Re-entry within 12 Months of Exit

12%

10.3% 10.0%

10%

9.4%

8.5% 8.6% 8.1%

8.4%

8%

7.6%

7.3%

8.2%

6.2%
6%

4%

2%

0%

Source: DHS Data

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Timeliness to Adoption for Children Who Become Legally Free, Metric 6.5
Metric 6.5 measures the timeliness to adoption for children who became legally free for adoption in the 12 months prior to the reporting period. The baseline for this metric was established at 54.3 percent with the performance target set at 75 percent. In the current report period, DHS data shows that of the 2,734 children who became legally free between October 1, 2015 and September 30, 2016, 1,886 (69 percent) were adopted within 12 months of becoming legally free. This represents a small positive increase of .4 percent since the last report period, and DHS’ strongest performance during the course of this reform effort. Further, this is the sixth consecutive period for which DHS has sustained progress toward the Target Outcome.
Figure 30: Metric 6.5 – Permanency Performance

80%

75.0%

70%

66.5% 68.6% 69.0% 63.3%

60% 54.3% 55.6% 51.9% 52.0% 57.2%

50%

40%

30%

20%

10%

0%

Source: DHS Data
It is notable that DHS achieved improved outcomes for Metric 6.5 in every report period at the same time the number of children subject to the metric increased in every report period. Table 13 below shows for each period the underlying number of children (denominator) who became legally free in the 12 months prior to the period and the number of children (numerator) who achieved permanency through adoption in the 12 months after becoming legally free.

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Table 13: Number of Children who became Legally Free Every Report Period under Metric 6.548

Metric 6.5

Jan 2014

July 2014

Jan 2015

July 2015

Jan 2016

July 2016

Jan 2017

July Jan 2017 2018

Numerator

898

857

839 935 1200 1459 1567 1754 1886

Denominator 1474 1540 1618 1797 2099 2304 2355 2558 2734

Performance 60.9% 55.6% 51.9% 52% 57.2% 63.3% 66.5% 68.6% 69.0%
Outcome

DHS’ regional Adoption Timeliness Accountability Teams (ATATs) continue to set and track target dates for adoption finalizations and address barriers that have delayed permanency for legally free children, with a focus on timely permanency for children who have an identified adoptive family.
For the last five report periods, DHS has been on a steady trajectory toward the Target Outcome for this measure. The Co-Neutrals find DHS has made good faith efforts during this report period to achieve substantial and sustained progress toward the Target Outcome for Metric 6.5.
Adoption Permanency, Metrics 6.6, and 6.7
Permanency Metrics 6.6 and 6.7 measure how well DHS avoids pre-adoption placement disruptions and post-adoption finalization dissolutions.
Metric 6.6 measures the percentage of adoption placements that do not disrupt over a 12month period, of all new trial adoption placements made during the previous 12-month period. The baseline for this metric was set at 97.1 percent and the Target Outcome was set at 97.3 percent. For this reporting period, DHS’ data shows that of the 2,513 children who entered a trial adoption placement between October 1, 2015 and September 30, 2016, 2,413 children (96 percent) did not disrupt from their placements within 12 months of entering trial adoption.
In the prior two report periods, DHS met the Target Outcome for this metric. However, for this period, the department reported a decrease of 1.3 percent from the 97.3 percent outcome achieved last period. A total of 100 children disrupted from their trial adoption placement this period and DHS needed 33 fewer pre-adoption disruptions to maintain performance at the
48 The column headings contained in this table reflect each semi-annual report date measured for this metric. The semi-annual report dates listed in the table correspond to the 12-month reporting periods contained in Table 9.
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Target Outcome. This performance outcome is below the baseline of 97.1 percent, after two previous periods of performance at or above the Target Outcome.
The Co-Neutrals reviewed the records of the 100 children whose trial adoptions disrupted during this report period. This review showed that challenging child behaviors identified by prospective adoptive parents were the predominant factors that contributed to placement disruptions. Child behaviors were noted as a factor for 65 of the 100 children whose adoption disrupted. Based on documented notes in the KIDS records for these 65 children, it appeared that for 61 (94 percent) of the children, DHS provided or offered services and supports for the child and/or family as needed in an effort to stabilize and preserve the placement. For 24 children whose adoption placements disrupted, there were varying levels of concerns noted about the family that appear to have impacted the placement, with the record showing DHS attempted in 17 of these child cases to address these concerns, when feasible, in order to preserve the placement. For ten children, the records showed that the pre-adoptive families recommended or the record indicated that the child (or children in the case of some sibling groups) should not be placed in a home with other children. For some cases, this was due to the child’s intensified needs that require the full attention of adoptive parents or the ability of a child to be placed safely with other children. However, these children were placed in preadoptive homes with other children and this appeared to be a contributing factor to the disruption.
The Co-Neutrals will review in future report periods DHS’ efforts to assess and continue to provide supports to prospective adoptive families. It is important to highlight that the number of children who are reviewed under this measure has more than doubled since earlier in this reform effort. Three years ago, in the review period of October 1, 2013 to September 30, 2014, there were 1,239 children whose pre-adoption success was reviewed in this measure (with an outcome of 96.4 percent that did not disrupt), which is less than half of the 2,513 children in pre-adoption reviewed in this report period.
Despite the performance downturn in this report period, the Co-Neutrals found evidence in the case file review of 100 children that DHS routinely supported families through the pre-adoption placement process and provided services meant to stabilize placements. DHS has done so even as the population of children placed pre-adoptively has increased by 85 percent since the beginning of the reform. That said, the Co-Neutrals urge DHS to closely track and assess any barriers that might prevent improved outcomes in this performance area. For this report period, the Co-Neutrals find that DHS made good faith efforts to achieve substantial and sustained progress to achieve the Target Outcome for Metric 6.6.
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Figure 31: Metric 6.6 – Permanency Performance

100% 97.1% 96.4% 96.4% 96.5% 95.4% 95.9% 97.7% 97.3% 96.0% 97.3%
95%

90%

85%

80%

75%

70%

65%

60% Baseline Jul-14 (Apr 08 Mar 10)

Jan-15

Jul-15

Jan-16

Jul-16

Jan-17

Jul-17

Jan-18 Target Source: DHS Data

Metric 6.7 measures the percentage of children who achieved permanency through adoption over a 24-month period and did not experience adoption dissolution within 24 months of adoption finalization. The baseline for this metric was established at 99.0 percent and the Target Outcome was set to maintain a 99.0 percent performance outcome. For this reporting period, DHS’ data shows that, of the 3,655 children who were adopted between October 1, 2013 and September 30, 2015, the adoptions of 3,647 children (99.8 percent) did not dissolve within 24 months of being adopted. DHS has consistently exceeded the Target Outcome for this metric in every report period. (See Figure 32 below) The Co-Neutrals find DHS has made good faith efforts to achieve substantial and sustained progress for Metric 6.7.

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Figure 32: Metric 6.7 – Permanency Performance

100%

99.9%

99.9%

99.8%

99.8%

99.8% 99.8%

100%

99.7% 99.7%

100%

99%

99%
99.0%
99%

99.0%

99%

99%

98%

Source: DHS Data
Legally Free Children without an Adoptive Family on January 10, 2014, Metric 6.1
DHS, under Metric 6.1, committed to move to permanency an identified cohort of children and youth who are legally free without an identified family. DHS and the Co-Neutrals established the point-in-time cohort of 292 children who were legally free for adoption and did not have an identified adoptive placement as of January 10, 2014. The Co-Neutrals established permanency targets for these children and youth as follows:
x By June 30, 2016, 90 percent of the 207 children who were ages 12 and under on January 10, 2014 will achieve permanency.
x By June 30, 2016, 80 percent of the 85 children who were ages 13 and over on January 10, 2014 will achieve permanency.
DHS reported that 167 (80.7 percent) of the 207 children in the younger segment of the cohort (ages 12 and under) achieved permanency as of December 31, 2017. This is an increase of five children since June 30, 2017 when DHS last reported that 162 children in the cohort had achieved permanency. At the end of the period, 39 children in the younger cohort remained in DHS custody.

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For the 85 youth in the older group (ages 13 and older), DHS reported that a total of 39 youth (45.9 percent) achieved permanency as of December 31, 2017, an increase of two youth since June 30, 2017.
Table 14: Metric 6.1 – Permanency Performance

Permanency Metric

Baseline

6.1: Of all legally free children not in an adoptive placement on 1/10/14, the number who have achieved permanency.

207 children: Age 12 and younger
85 children: Age 13 and older

Permanency Target by 6/30/2016

Permanency Achieved as of
12/31/2017

167 children (80.7%) 90%
achieved permanency

39 children (45.9%) 80%
achieved permanency

DHS also reported that as of December 31, 2017, 39 youth (45.9) percent) in the older cohort have aged out of custody without achieving permanency, an increase of three youth since June 30, 2017, the end of the previous report period. At the end of this period, seven youth in the older cohort remained in DHS custody.
Efforts to Identify Permanent Families for Children and Youth in the 6.1 Cohort
A primary strategy DHS has implemented to advance permanency, primarily with a focus on adoption, for the children in the 6.1 cohort is to assign an Adoptions Transition Unit (“ATU”) worker to help identify and secure a permanent family for children in this cohort, regardless of the child’s permanency goal. DHS reported that these ATU workers, along with the child’s permanency caseworker, review each child’s progress toward permanency, and develop plans to identify permanent placements for each child and youth. ATU workers specialize in locating permanent homes for children by performing diligent searches to identify family connections and by using information gathered from discussions with children and youth to help identify potential adoptive or guardianship families.
In order to further support the ATU process and to bring ATU workers closer toward agreed upon caseload standards, DHS reported that it allotted during this report period additional fulltime ATU positions, which expanded the statewide ATU team to eight supervisor groups with four to six ATU specialists in each Region. As of June 30, 2017, there were 27 ATU workers carrying at least one case, which increased to 38 by December 31, 2017. Further, DHS highlighted that this is the first period during which ATU workers were not assigned any nonATU related cases, allowing them to focus solely on advancing permanency for children in the
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6.1 cohort, as well as all other children who are legally free for adoption and do not yet have an identified adoption placement.
The Co-Neutrals find that DHS has made good faith efforts to achieve substantial and sustained progress toward the 6.1 Target Outcomes.
Permanency for Older Legally-Free Youth, Metric 6.4
Metric 6.4 includes a cohort of legally free youth who turned 16 years of age within two years before the report period and tracks those youth to measure the percentage who exited foster care to permanency, defined as adoption, guardianship or reunification, before the age of 18. The final Target Outcome for this metric is set only for the percentage of youth who achieve permanency. However, the outcomes for youth exiting care without permanency or who remain voluntary in DHS’ care after the age of 18 are also publicly reported to provide transparency into their overall experience. DHS’ baseline for this permanency metric was set at 30.4 percent of youth exiting with a permanent family. The final target was set at 80 percent by June 30, 2016.
For this period, DHS reported that 136 legally free youth turned 16 years of age between October 1, 2014 and September 30, 2015. Fifty-nine of these youth, representing 43.4 percent, achieved permanency as follows: 41 youth were adopted, 13 youth exited through guardianship, four youth exited through custody with a relative and one youth was reunified. This is a substantial increase of 12.3 percent from the last period, when performance was at 31.1 percent, and represents the largest performance increase DHS has reported within one period for this measure.
During the previous period, DHS leadership developed a number of strategies to improve the outcomes for the youth who are reviewed in this measure and for whom, historically, DHS has faced some of the greatest permanency challenges. Because youth in this cohort are 16 years of age or older, limits on time loom large with respect to achieving permanency before youth reach the age of 18 and exit DHS custody, and so it is critical that DHS continue to implement strategies to support permanency for these youth.
The strategies DHS has implemented to improve outcomes under this measure focus on both reducing the number of children who enter this metric’s cohort and applying additional focus and resources to youth in the cohort who are at the greatest risk of aging out. To reduce the number of children entering the cohort, DHS has sought to achieve more timely permanency (through adoption and guardianship primarily) for legally free youth before they reach the age of 16 and to stabilize and maintain youth with their families, when safely possible, as older youth sometimes have higher protective capacities and can remain in their homes with supports and services.
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For children who enter the cohort, DHS developed a caseworker position type, Permanency Expeditor (PE), who is assigned to youth with a permanency case plan goal of planned alternative permanent placement (PAPP). PEs provide added support to the child’s permanency worker to identify and advance all remaining opportunities to achieve permanency before the youth ages out of care. DHS decided to implement this permanency specialist position, as some caseworkers found it challenging to engage and communicate effectively with some youth who request a PAPP goal and struggled to support youth toward achieving stability and legal permanency with a family.
As reported in past Commentaries, the majority of youth reviewed in the 6.4 measure during prior report periods had a PAPP goal, not a goal of adoption, guardianship or reunification. For these youth DHS no longer made concerted efforts to achieve permanency and focused instead on preparing the youth to age out of DHS custody and for independent living. For example, in the 6.4 Metric review period of October 2015 to September 2016, 81 of the 123 youth (66 percent) in the cohort had a PAPP case plan goal and 78 (96 percent) of the 81 youth with a PAPP goal aged out of foster care without a permanent family during that timeframe. For this report period, October 2016 to September 2017, 67 (49 percent) of the 136 children in the 6.4 measure cohort were reported to have a PAPP goal, and 61 of these 67 children aged out.
Two important changes positively impacted the reduction of youth assigned a PAPP goal from 81 (review period September 2015 to October 2016) to 67 for the current review period. First, a new federal law went into effect in September 2015, which no longer allows child welfare systems to establish PAPP as the case plan goal for children ages birth to 15.49 Second, during this period, DHS leadership communicated to staff new requirements to change a child’s case plan goal to PAPP, including the pre-condition that supervisors approve the change only after the child’s caseworker has explored and documented that all other permanency options have been determined not to be feasible or in the child’s best interest. (See Appendix H) Further, staff must identify a sufficient number of permanent connections upon whom the child can depend after aging out of DHS custody. When a youth is assigned a PAPP goal, DHS now assigns a PE to continue final efforts, working with the child and permanency worker, to achieve permanency.
49 P.L. 113-183, Section 112(a), signed Sept 29, 2014.
130

Figure 33: Metric 6.4 – Permanency Performance

90%
80.0%
80%

70%

60%

50%

43.4%

40%
30% 30.4% 26.9% 25.0% 25.3% 26.2% 27.6% 28.5% 31.1%

20%

10%

0%

Baseline Jul-14 Jan-15 Jul-15 Jan-16 Jul-16 Jan-17 Jul-17 Jan-18 Target

(Jul 09 -

Jun 10)

Source: DHS Data

As shown in Figure 33 above, DHS’ performance for this metric remained below the starting baseline until the last report period when DHS’ performance exceeded the baseline of 30.4 percent. DHS’ performance in this report period improved significantly to 43.4 percent.
Since implementation of the strategies DHS has undertaken for the 6.4 cohort, specifically the assignment of PE and limitations on the assignment of PAPP case goals, permanency outcomes for this performance area moved significantly in a positive direction in this report period and the Co-Neutrals find DHS has made good faith efforts to achieve substantial and sustained progress toward the 6.4 Target Outcome.

131

Appendix A: Metric Plan Baselines and Targets (Updated September 2015)
Oklahoma Department of Human Services Compromise and Settlement Agreement in D.G. v. Henry

Under Section 2.10(f) of the CSA, the Co-Neutrals shall issue Baseline and Target Outcomes, which shall not be subject to further review by either party but may at the discretion of the Co-Neutrals, after providing the parties an opportunity to comment, be revised by the CoNeutrals. These Baselines and Target Outcomes are currently in effect.

1. MALTREATMENT IN CARE (MIC)
Metric

Reporting Frequency

Baseline

1.A: Of all children in foster care during the reporting period, what Semi-Annually, in the

98.73%

percent were not victims of substantiated or indicated maltreatment January and July monthly

by a foster parent or facility staff member in a 12 month period. reports

(April 2013 – March 2014)

Target 99.68%

1.A (2): Number of children in the legal custody of OKDHS, found to have been maltreated by a resource caregiver over the 12 month period. 1.B: Of all children in legal custody of OKDHS during the reporting period, what number and percent were not victims of substantiated or indicated maltreatment by a parent and what number were victims.

Monthly
Semi-Annually, in the January and July monthly reports

N/A
98.56% (Oct 2011 – Sept 2012)

1.B (2): Number of children in the legal custody of OKDHS, found to Monthly

N/A

have been maltreated by a parent over the 12 month period.

N/A 99.00%
N/A

132

2. FOSTER AND THERAPEUTIC FOSTER CARE (TFC) HOMES

Metric

Reporting Frequency Target SFY 14

Target SFY 15*

Target SFY 16*

2.A: Number of new foster homes (non-therapeutic, Monthly non-kinship) approved for the reporting period.**

1,197
(July 1, 2013 Baseline: 1,693)

Net gain/loss in foster homes (non-therapeutic, non- Semi-Annually, in the

kinship) for the reporting period***

January and July

monthly reports

2.B: Number of new therapeutic foster homes (TFC) Monthly

reported by OKDHS as licensed during the reporting

period.

615
150 (July 1, 2013 Baseline: 530)

Semi-Annually, in the n/a

Net gain/loss in therapeutic foster homes (TFC) for January and July

the reporting period.

monthly reports

End of Year: 904 Interim Target: 678 by 3/31/15
(July 1, 2014 Baseline: 1,958)
356

End of Year: 1,054 Interim Targets: 12/31/2015: 527 3/31/2016: 790 6/30/2016: 1,054
(July 1, 2015 Baseline: 1,858) 534

150

172

Interim Targets:

(July 1, 2014 Baseline: 473) 12/31/2015: 86

3/31/2016: 129

6/30/2016: 172

(July 1, 2015 Baseline: 437)

56

81

 By May 30 of each year, DHS shall conduct annual trend analysis to set annual targets for the total number of new homes developed and the net gain for
foster and TFC homes needed to meet the needs of children in and entering care. The Co-Neutrals also set an interim target of newly approved homes for the
year. ** DHS and the Co-Neutrals established criteria for counting new non-kin foster and TFC homes toward the annual targets set under 2.A and 2.B. *** DHS and the Co-Neutrals established a methodology for counting net gains/losses of non-kin foster and TFC homes.

133

3. CASEWORKER VISITS

Metric

Reporting Frequency

3.1: The percentage of the total minimum number of required

Monthly

monthly face-to-face contacts that took place during the reporting

period between caseworkers and children in foster care for at least 1

calendar month during the reporting period.

Baseline
95.5%
(July 2011-June 2012)

Target
95%

3.2: The percentage of the total minimum number of required

Monthly

monthly face-to-face contacts that took place during the reporting

period between primary caseworkers and children in foster care for

at least 1 calendar month during the reporting period.

51.2% (July 2011-June 2012)

3.3(a): The percentage of children in care for at least three

Semi-Annually, in the

consecutive months during the reporting period who were visited by January and July monthly

the same primary caseworker in each of the most recent three

reports

months, or for those children discharged from OKDHS legal custody

during the reporting period, the three months prior to discharge.

53% (January - June 2013)

Final: 90% Interim – Last reported month of: FFY 2013 - 65% FFY 2014 - 70% FFY 2015 - 80% FFY 2016 – 90% 75%

Phase One: for period Jan – Dec 2012 This metric is no longer reported on

3.3(b): Percentage of children in care for at least six consecutive Semi-Annually, in the

40.6%

65%

months during the reporting period who were visited by the same January and July monthly

primary caseworker in each of the most recent six months, or for reports

(January 2013 – June 2014)

those children discharged from OKDHS legal custody during the

reporting period, the six months prior to discharge.

Phase Two: for period Jan 2015 until the end of the Compromise and Settlement Agreement (CSA)

134

4. PLACEMENT STABILITY

Metric
4.1 (a): Percent of children in legal custody of OKDHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 8 days but less than 12 months, the percentage that had two or fewer placement settings.

Report

Baseline

Frequency

Semi-Annually, in the

70%

January and July monthly

report -same for all

(Oct 2011 – Sept 2012)

placement stability metrics

4.1(b): Percent of children in legal custody of OKDHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 12 months but less than 24 months, the percentage that had two or fewer placements.

Same

50% (Oct 2011 – Sept 2012)

4.1(c): Percent of children in legal custody of OKDHS that experience Same two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 24 months, the percentage that had two or fewer placement settings.

23% (Oct 2011 – Sept 2012)

4.2: Of those children served in foster care for more than 12 months, the percent of children who experienced two or fewer placement settings after their first 12 months in care.

Same

74% (Apr 2012 – Mar 2013)

4.3: Of all moves from one placement to another in the reporting N/A

N/A

period, the percent in which the new placement constitutes

progression toward permanency. (Note: the Co-Neutrals have

suspended this metric.)

Target – by June 30, 2016
88%
68%
42% 88% N/A

135

5. SHELTER USE

Metric

Report Frequency

5.1: The number of child-nights during the past six months involving Monthly children under age 2 years.
Analysis of usage every 6 months – same for all shelter metrics

5.2: The number of child-nights during the past six months involving Same children age 2 years to 5 years.

5.3: The number of child-nights during the past six months involving Same children age 6 years to 12 years.

Baseline (January-June 2012)
2,923 child-nights
8,853 child-nights 20,147 child-nights

5.4: The number of child-nights during the past six months involving Same children age children 13 years or older.

20,635 child-nights

Target
0 by 12/31/12
0 by 6/30/13
0 for children 6-7 by 7/1/14 0 for children 8-9 by 10/1/14 0 for children 10-12 by 1/1/15 unless in a sibling group of 3 or more 0 for children 10-12 by 4/1/15 unless with a sibling group of 4 or more Interim Target by 6/30/15 # child-nights: 13,200 80% of children 13+ in shelters will meet Pinnacle Plan (PP) Point 1.17 rules Final Target by 6/30/16 # child-nights: 8,850

1.17: Number of children ages 13 or older in shelters that had only one stay for less than 30 days.

33.7% (January-June 2014)

90% of children 13+ in shelters will meet PP Point 1.17 rules

 Pinnacle Plan Point 1.17: “By June 30, 2014, children ages 13 years of age and older may be placed in a shelter, only if a family-like setting is unavailable to meet their needs. Children shall not be placed in a shelter more than one time within a 12-month period and for no more than 30 days in any 12-month period. Exceptions must be rare and must be approved by the deputy director for the respective region, documented in the child’s case file, reported to the division director no later than the following business day, and reported to the OKDHS Director and the Co-Neutrals monthly.
136

6. PERMANENCY Metric
6.1: Of all children who were legally free but not living in an adoptive placement as of January 10, 201450, the number of children who have achieved permanency.

Report Frequency
Semi-Annually, in the January and July monthly reports same for all permanency metrics

Baseline
Jan 10, 2014 Cohort 292 children

Target
90% of children ages 12 and under on Jan 10, 2014 will achieve permanency
80% of children ages 13 and older on Jan 10, 2014 will achieve permanency

6.2(a): The number and percent of children who entered foster care 12-18 months prior to the end of the reporting period who reach permanency within one year of removal, by type of permanency.

Same

6.2(b): The number and percent of children who entered their 12th month in foster care between 12-18 months prior
to the end of the reporting period who reach permanency
within two years of removal, by type of permanency.

Same

6.2(c): The number and percent of children who entered their 24th month in foster care between 12-18 months prior
to end of reporting period who reach permanency within
three years of removal, by type of permanency.

Same

Total = 35%
Reunification = 31.4% Adoption= 1.6% Guardianship = 2% Total = 43.9%
Reunification = 22.3% Adoption = 18.9% Guardianship = 2.7% Total = 48.5%
Reunification = 13.0% Adoption = 32.7% Guardianship = 2.9%

Total = 55% Total = 75% Total = 70%

50 The legally free cohort for Metric 6.1 was to be set originally on March 7, 2013, the date the Metrics Plan was finalized, but due to since-corrected data challenges the cohort was established for January 10, 2014.
137

6.2(d): The number and percent of children who entered their 36th month in foster care between 12-18 months, prior
to the end of the reporting period who reach permanency
within four years of removal.

Same

Total = 46.6% Reunification = 8.8% Adoption = 37.3% Guardianship = .4%

Total = 55%

138

6. PERMANENCY Metric
6.3 Of all children discharged from foster care in the 12 month period prior to the reporting period, the percentage of children who re-enter foster care during the 12 months following discharge.

Report Frequency
Same

6.4: Among legally free foster youth who turned 16 in the period 24 to 36 months prior to the report date, the percent that exited to permanency by age 18; stayed in foster care after age 18, and exited without permanency by age 18.

Same

6.5: Of all children who became legally free for adoption in the 12 month period prior to the year of the reporting period, the percentage who were discharged from foster care to a finalized adoption in less than 12 months from the date of becoming legally free. 6.6: The percent of adoptions that did not disrupt over a 12 month period, of all trial adoptive placements during the previous 12 month period. 6.7: The percent of children whose adoption was finalized over a 24 month period who did not experience dissolution within 24 months of finalization.

Same
Same Same

Baseline

Target

10.3%

8.2%

Discharged year ending 9/30/11 re-entered as of 9/30/12

30.43% (July 2009-June 2010)

50% by 12/31/14 75% by 12/31/15 80% by 6/30/16

54.3% (Oct 2011-Sept 2012)

75% by June 30, 2016

97.1%
(Apr 2008-Mar 2010) 99%

97.3% 99%

139

7. CASELOADS Metric Supervisors

Report Frequency Quarterly, every Jan, April, July and Oct – same for all caseloads

Standard 1:5 ratio

Child Protective Services (CPS) OCA (Office of Client Advocacy) Family Centered Services (FCS) Permanency Foster Care Adoption

Same
Same
Same
Same Same Same

12 open investigations or assessments 12 open investigations
8 families
15 children 22 families 8 families & 8 children

Baseline 58.8% (as of June 30, 2014)

Target
90% meet standard by June 30, 2014

Same Baseline for All Case Carrying Workers:
27% - meet standard 8% - 1-20% above standard 65% - 21%+ above standard

Same Interim Target for All Case Carrying Workers – by Dec 31, 2013:
45% - meet standard
30% - 1-20% above standard
25% - 21%+ above standard
Final Target: 90% of all workers meet their standard by June 30, 2014

140

Appendix B: Suggested Foster Parent Training Opportunities

Month of Foster Parent Customer Service Calls April 2017

Suggested Topics for Ongoing Training
potty training, training in local areas, kinship foster care, the child welfare process from removal to reunification, training on specific behaviors, court, provide more real life case experiences from foster parents who have been there, trauma training, separation issues with bio parents, visitation, cultural diversity, transitioning a teenager to adult, behavioral health needs of children in care, ICWA, how to handle the placement - what questions to ask, paperwork needed, names and numbers to get, etc., positive benefits of bridging, working with older children in the home

May 2017

working with birth families, time management, confrontation and interaction, drug exposed infants, trauma, bridging with families, foster parent rights, children with disabilities, emotional health for children and parents, children's response from trauma, empowered to connect, understanding the court system, general parenting and child safety, CPR, what to expect at court hearings, handling children who melt down, teen behaviors and how to handle them, dealing with mental health issues, encouraging teenagers to make good choices

June 2017 July 2017

how to handle behaviors, CPR, drug exposed children, more training opportunities in rural counties, water safety, hot weather, booster safety and requirements, mileage reimbursement, understanding the child welfare system, foster care protocol/expectations and rules, cultural diversity, panel of birth parents to help understand their perspective, dealing with bio families and what to expect, what to ask prior to accepting placement, communicating with children about the legal process and permanency, trauma, child development, discipline techniques, dealing with children with ADD/ADHS/FAS, adoption process dealing with behaviors from traumatized children, dealing with the emotional strain on the foster family and their kids, sign language, adoptive parent training, practical parenting for first time parents, attachment, trauma informed care, enlist counselors to come to the foster home to talk with the family and offer training credit, bridging with the bio family, coping and managing behavioral issues, training about when kinship placements go home and how to deal with that change in dynamics, discipline techniques, foster parent rights, dealing with children who act out, dealing with teen behaviors, family meetings, what to do if a child is removed in the middle of the night, caring for addicted newborns

August 2017 October 2017

completing travel claims, CPR, dealing with teens, aggressive behaviors, autism, trauma experiences, crisis cycle, integrating children currently in the home, medical information, working with older children, self-esteem, discipline specific behaviors - sexual and defiant behaviors, trauma informed training, ICWA, discipline and behavioral modification, car seats, coping when the children leave, dealing with attitudes, children with attachment disorder, adjusting to different age groups

141

Appendix C: Workload Improvement Plan
Workload Performance Improvement Plan (Effective date: 10/31/17)
A significant strength of our Child Welfare system is our robust continuous quality improvement (CQI) system. In addition to showing what is working in our system, CQI processes that involve the routine review and analyses of data draw attention to unexpected changes in trend lines and alert leadership to the need for focused attention.
For the first time since June of 2016, a review of data shows that our overall workload has surpassed our overall workforce capacity. Over the last several years, we have focused heavily on stabilizing our workloads by ensuring adequate resources are allocated based on where the workload need is located. We make adjustments as the workload shifts. The data shows that our most recent shift in need is due to the increase in the CPS workload resulting from a spike in referrals assigned for investigation with a simultaneous net decrease in number of caseload carrying staff.
An increase in the number of overdue investigations and assessments combined with an increase in the overall number pending, is an indication that if we do not make adjustments quickly, we will lose the workforce stability we’ve diligently worked to achieve. Therefore, in addition to expediting recruitment, hiring, and onboarding efforts to ensure the right number of staff are in place, immediate adjustments in workload distribution are required to stabilize the workforce.
The following action steps will be implemented beginning immediately. Some strategies are ongoing, and some are temporary strategies that will be utilized only to fill a gap while other efforts begin to take hold.
1. Immediate Workload Adjustments
Starting October 30, 2017, the following temporary adjustments in workload calculations can be utilized. These changes will be in effect for 90 days only.
A. Graduated Workloads: The purpose of assigning graduated workloads is to avoid overwhelming new staff and to provide them opportunities for coaching and training before they receive a full caseload so that they can acquire and practice the necessary skills. This strategy is intended to positively impact turnover of staff within their first year of employment. It has, and we must be careful not to reduce that impact. However, feedback from the field indicates that minor adjustments could preserve the impact while increasing our ability to equalize distribution of workload.
¾ Previous methodology (based on length of employment): o 3 months (approximately) = 25% workload o 6 months = 50% workload o 9 months = 100% workload
¾ New (temporary) methodology (*): 142

o 3 months (approximately) = 50% workload o 6 months = 75% workload o 9 months = 100% workload (*Careful consideration should be given to the skill level and development of individual staff members.)
B. Workload Standard:
Workload standards were adopted to ensure staff have manageable workloads, so that they have adequate time to devote to engaging families to ensure safety, permanency, and wellbeing of children served. Further, establishing a workload methodology allows for leadership to allocate resources based on workload need.
¾ Current methodology: o Staff “meet standards” when their workload is 100% of the standard or less o Staff “almost meet standards” when their workload is greater than 100% of the standard but less than 120% o Staff “do not meet standards” when their workload is greater than 120% of the standard.
¾ New (temporary) methodology (*) for CPS and PP in approved districts: o All staff who are not eligible for a graduated workload may carry a workload up to 120% of the standard. (For a permanency planning worker, this could be up to 18 children. For a CPS worker, this could be up to 14 investigations.) o No staff member will carry a workload greater than 200% of the standard at any given time.
(*Careful consideration should be given to the skill level and development of individual staff members.)
Any district currently at less than 100% capacity in comparison to overall workload is approved to utilize the new temporary workload methodology. As of 10/30/17, those districts are 4, 6, 7, 8, 10, 14, 20, 21, 25, 26, and 27.
We will continue to monitor the data, to determine whether the increase in CPS workload is a temporary spike or a new trend. This information will be utilized to make long term decisions regarding the allocation of resources.
2. Conduct turnover analyses to understand the uptick and turnover this SFY. The analyses will be used to provide focused attention to targeted districts using the “target district” model we’ve used in the past.
143

3. Update workload analyses to reflect the increase in CPS workload. This will inform decisions related to staffing distribution.
4. Implement training and quality assurance plan at the Hotline to ensure appropriate screening decisions are occurring.
5. Utilize overtime plans in districts with highest number of investigations and assessments in backlog status.
We are interested in hearing feedback from you and your staff throughout the process of implementing these temporary adjustments. We need to understand what’s working and what’s not working related to these changes. Therefore, we have created the following email address for staff to send feedback to: cws.workload.feedback@okdhs.org.
144

Appendix D: Statewide Workload and Hiring Plan Workloads Compliance

As DHS closes in on its workload compliance goal of 90% of all caseload carrying staff will be meeting standards by December 31st, 2018 and move past the 70% range which has been a place that DHS
has flattened out. In order to meet that goal DHS must ensure it has adequate staff hired and able to carry
cases so that the capacity is greater than the workload. Currently there are 276 positions vacant which leads to the following hiring pattern to have them filled by December 31st:

Currently Vacant Positions needing to be filled

District March April

May

June

July August September October November December Total to hire

1

0

2

1

1

1

1

1

5

3

1

1

4

1

1

1

1

1

1

2

1

2

1

12

5

1

1

1

1

1

1

1

7

6

1

1

1

1

4

7

5

5

5

5

5

5

5

5

5

6

51

8

1

1

1

1

1

1

1

1

1

9

9

1

1

1

3

10

1

1

1

1

1

1

1

1

1

9

11

1

1

2

12

1

1

2

13

0

14

3

3

3

3

3

3

3

3

3

4

31

15

1

1

1

1

1

1

6

16

1

1

2

17

1

1

1

1

1

1

1

1

1

1

10

18

1

1

1

1

1

1

1

7

19

1

1

1

1

1

5

20

1

1

1

1

1

1

1

1

1

2

11

21

1

2

1

2

1

2

1

2

2

2

16

22

1

1

1

1

1

1

6

23

1

1

1

1

1

5

24

1

1

25

1

1

1

1

1

1

1

7

26

1

1

1

1

4

27

1

1

1

1

1

1

1

1

8

FC

1

1

1

1

1

1

1

1

1

2

11

AA

4

4

4

4

4

4

4

4

4

5

41

Totals

34

36

31

31

28

26

24

21

21

24

276

During this time there will be turnover leading to additional positions needing to be filled. Based on current turnover the number of positions that need to refilled will be 271 with the following breakdown:

145

District
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
FC
AA
Totals

March
0 1 1 2 0 1 5 2 1 0 0 0 0 2 1 0 0 2 1 0 1 1 1 0 0 2 1 4 1 30

Caseworkers needed to be replaced due to turnover

April

May

June

July August September October November December Total to hire

1

1

0

0

1

0

0

0

0

3

0

1

0

1

0

1

0

3

0

7

0

1

0

0

0

1

0

0

0

3

1

1

1

1

3

1

1

2

0

13

1

0

1

0

2

0

1

0

1

6

1

2

1

0

0

1

2

0

0

8

5

4

5

5

4

4

6

4

4

46

1

0

1

0

2

0

1

1

0

8

1

0

0

1

1

0

0

1

0

5

0

1

0

0

0

1

0

0

0

2

0

0

0

0

0

3

1

1

0

5

1

0

0

1

0

0

1

0

0

3

0

0

1

0

0

0

0

0

1

2

4

2

3

2

4

2

3

2

4

28

1

1

0

1

0

1

0

1

1

7

1

0

0

0

1

0

1

2

0

5

1

2

0

0

1

0

0

1

2

7

0

0

0

0

1

0

1

0

0

4

2

0

0

1

1

0

0

1

1

7

0

2

0

0

2

1

0

1

0

6

1

1

1

0

1

0

2

1

1

9

0

0

1

0

0

1

2

0

1

6

0

1

0

2

0

0

0

2

0

6

1

1

1

0

0

1

0

0

0

4

0

0

1

1

1

0

1

0

0

4

0

0

0

1

0

0

1

1

0

5

1

0

2

1

1

0

2

1

1

10

4

5

4

4

6

3

5

4

5

44

0

2

0

1

0

1

0

2

1

8

28

28

23

23

32

22

31

31

23

271

This brings the total number of positions to be filled up to 547 positions with the breakdown of:

146

Total Caseworkers to be hired

District March April

May

June

July August September October November December Total to hire

1

0

1

1

0

0

1

0

0

0

0

3

2

2

1

2

1

2

0

1

0

3

0

12

3

1

1

1

0

0

0

1

0

0

0

4

4

3

2

2

2

2

4

3

2

4

1

25

5

1

2

1

2

1

3

1

1

0

1

13

6

2

2

3

2

0

0

1

2

0

0

12

7

10

10

9

10

10

9

9

11

9

10

97

8

3

2

1

2

1

3

1

2

2

0

17

9

2

2

1

0

1

1

0

0

1

0

8

10

0

1

2

1

1

1

2

1

1

1

11

11

1

1

0

0

0

0

3

1

1

0

7

12

1

2

0

0

1

0

0

1

0

0

5

13

0

0

0

1

0

0

0

0

0

1

2

14

5

7

5

6

5

7

5

6

5

8

59

15

2

2

2

1

2

1

1

0

1

1

13

16

1

2

0

0

0

1

0

1

2

0

7

17

1

2

3

1

1

2

1

1

2

3

17

18

3

1

1

1

1

2

1

1

0

0

11

19

2

3

1

1

2

1

0

0

1

1

12

20

1

1

3

1

1

3

2

1

2

2

17

21

2

3

2

3

1

3

1

4

3

3

25

22

2

1

1

2

1

1

1

2

0

1

12

23

2

1

2

1

3

0

0

0

2

0

11

24

1

1

1

1

0

0

1

0

0

0

5

25

1

1

1

2

2

2

1

1

0

0

11

26

3

1

1

1

1

0

0

1

1

0

9

27

2

2

1

3

2

2

1

3

1

1

18

FC

5

5

6

5

5

7

4

6

5

7

55

AA

5

4

6

4

5

4

5

4

6

6

49

Totals

64

64

59

54

51

58

46

52

52

47

547

The total of 547 is a large number and a difficult feat. CW has noticed that there are two large pockets of districts that all need help in getting positions on board. Those pockets are district 6, 20, and 21 being the first pocket and districts 8,10, and 14 making the second pocket. CW will need to work with HR to form an aggressive strategy to increase the number of applicants and therefor hires in those districts. The reality of the situation is that some districts will not be able to hire the number of staff needed while other districts will reduce the number of staff that is needed through the reduction of turnover and workloads but retain staff to put their capacity well above the total workload. Finding a way to leverage extra capacity in some districts to cover the capacity deficit in others will be paramount to having 90% of workers meeting the standard by December 31st.

147

Appendix E: Quality Worker Visits - Guidance and Tools
Quality Worker Visits (Children)
Definition: Quality contacts are purposeful interactions between caseworkers and children, youth, parents, and resource parents that reflect engagement and contribute to assessment and case planning processes by ensuring child safety, supporting permanency planning, and promoting child and family well-being.
Impact of Quality Contacts: x Improved assessments of safety, risk, and needs x Joint development in case plans x Shared understandings of progress toward goals, strengths, and needs x Improved family and youth engagement and empowerment
Key Phases: Before: Planning and Preparation During: Engagement, Assessment, Exploration, and Adjustment After: Documentation, debriefing, and follow-up
Before: x Plan for length and location of visit to support honest conversations x Contact all service providers and medical providers for the child and review most recent service provider report. Evaluate any change of behaviors, current treatment plans, and medical reports/medications prescribed. x Review educational needs/review any IEP or other educational plans for the child x Review case plan goal and make a plan on how we will discuss this goal with the placement provider and child. x Contact Resource Worker for foster home to discuss any WPC’s, Concerns for the Home, etc. Review Resource and any associated investigations. x Identify all issues/concerns that will be discussed during the contact
During: x Review agenda with resource parent and child and incorporate any input x Using DHS Practice Standards- suspend biases, be culturally competent, and demonstrate empathy and respect. x Utilizing the 6 key questions of the Assessment of Child Safety assess safety and risks. o Child Functioning: How does the child in the home function on a daily basis?  Emotional/Physical Health  Child Development 148

 Relationships/ Role within the family  Mood/Behaviors  Sleeping Arrangements  Social Skills  Education and the parents role/participation in the child’s educational needs  Functioning within cultural norms  Who all cares for you on a day to day basis- even when worker is not here  Obtain Collateral information regarding these areas
o Discipline: Describe the discipline methods used by PRFC and under what circumstances they occur. Discuss how the type of discipline impacts the child emotionally and ensure that
discipline techniques for all children in the home are assessed.  Methods used  Frequency  Purpose  Emotional State of PRFC  Cultural Implications  Effectiveness  Obtain Collateral information regarding these areas
o Parenting: Overall family values and typical and pervasive parenting practices used by all PRFC(s).  PRFC(s) knowledge and expectations of each child in their home and their own
biological children  Perceptions of each child  Interactions between parent and child  Protective Capacities  Reasons for fostering  Decision-making parenting practices  Level of agreement between all PRFC’s  Cultural Practices  Obtain collateral information regarding these areas
o Adult Functioning: How does the adult function with respect to daily life management and general adaptation? Mental health and/or substance abuse?  Feels, thinks, and acts on daily basis with a focus on functioning and coping skills  Communication Skills  Coping/Stress management  Self-Control  Problem Solving/Decision Making  Finances  Employment  Community Involvement
149

 Substance Use  Mental Health  Family and/or Domestic Violence  Obtain Collateral information regarding these areas x Explore Well-Being of the child/youth and family x Have a conversation in regards to case goals and progress/lack of progress since the last visit and assess feedback on feelings associated to this information x Observe the child in the home x Ask child for any other input, concerns, feelings, needs, etc. they might have; including, but not limited to the child’s desires for permanency x Discuss how the agency can help support the family x Summarize visit and make arrangements for the next After: x Document key information, observations, and decisions without using “buzzwords”, instead describe behaviors and document exact information. x All worker visits will be documented within 5 days in order to ensure accurate information x Debrief visit with supervisor and follow up on commitments made and next steps
150

Intentional Case Staffing Guide for Permanency Planning (PP) Supervisor
Case Name: __________________________ Date: __________________________
Supervisor: __________________________ Specialist: ______________________
Practice Note: An intentional case staffing is completed on each case every 90 days from the date of removal. The purpose of intentional case staffing is to ensure the quality and consistency of practice through supervisory oversight and coaching. The questions in this guide assist supervisors in identifying the occurrence of quality practice. This tool is a guide to coach specialists in thinking critically about case practice and support positive safety, permanency, and well-being outcomes.
Reunifcation in 12 months
Guardianship when appropriate
Adoption within 24 months
1. Review of Child’s Safety and Wellbeing in Current Placement 9 How is the child functioning in his or her placement? 9 Can the specialist describe how he or she observes the non-verbal child for signs of being unsafe? 9 Can the specialist describe how he or she interacts alone with the verbal child each month and initiating conversation about the child’s safety? 9 How does the specialist describe the placement provider’s relationship and interactions with the foster child? 9 Is the child placed with kinship? If applicable, is the placement Indian Child Welfare Act (ICWA) compliant? If not, what ongoing efforts are being made to place with kin or in an ICWA-compliant placement? 9 Has a diligent search been completed and letters sent to identified relatives as stated in policy? 9 Are there siblings and if so, are they placed together? If not, is the quality and consistency of visitation meeting the children's needs? 9 Is there any reason to believe that this placement may not be able to continue to meet this child's needs? If so, what is being done to support the child and placement provider? 9 What services is the child receiving, such as physical health, counseling, Individualized Education Program (IEP), developmental disability (DD) services, or tutoring? 9 Are the services currently in place meeting all the identified needs? 9 Does the specialist have any concerns with the child's placement?
151

2. Review Visitation between the Child and Parent(s) 9 What is the frequency and duration of the parent/child visits? Does the specialist believe it is sufficient to meet the child’s needs to remain connected and bonded to his or her parent(s)? 9 Does the location support the family's needs and the case plan goal, for example, visitation in the parent's home when the case plan goal is reunification? 9 What is the specialist's observation of the quality of parent/child interaction? 9 How does the person responsible for the child (PRFC) display protective capacities during visits? 9 Has the specialist observed any unsafe behavior during the visits? 9 What contact outside of visitation is occurring between the parent/child, such as phone, email, or social media? 9 Can the specialist describe what safety condition needs to occur to increase the frequency and duration of visitation? If visits are currently supervised, what safety condition needs to occur to move to unsupervised visitation?
3. Review of Specialists Contact with PRFC(s) Case Assessment and Progress 9 How does the specialist describe the family's involvement in case planning? 9 Can the specialist give specific examples of how he or she made efforts to improve family involvement? 9 Based on the underlying causes, what services has the parent(s) been referred to? 9 Can the specialist describe how the individualized service plan (ISP) is behaviorally based? How is it addressing the safety threats? 9 What services are the parent(s) engaged in? Can the specialist relay what the parent's service providers report as barriers to child safety? 9 Can the parent(s) articulate what he or she thinks has changed in his or her behaviors and the family home since the child was removed? 9 Does the specialist have contact with the parent(s)/PRFC(s) in the home at least once a month? If not, discuss the barriers to monthly contact and relate back to continually assessing a parent's progress and safety. An ongoing assessment of child safety requires monthly contact with the PRFC(s). 9 What is the specialist's assessment of the PRFC's current behaviors and protective capacities? How is he or she gathering information from ongoing collaterals - service providers, friends, family, and foster parents; the child(ren); and the PRFC to make this assessment? 9 Is the current permanency goal appropriate for the case circumstances? If not, have a discussion around changing the goal.
Practice Note: Potential reasons for changing case plan goal. x The case plan goal is reunification, but the child has been in out-of-home care for more than 12 months. x 90-calendar days since adjudication and the parent(s) is making minimal behavioral changes.
152

4. Review of Assessment of Ongoing Child Safety 9 Can the specialist describe the safety threats and specific behaviors that caused the child to be unsafe and required initial safety intervention? 9 Can the specialist describe what the parent(s) behaviors looked like and how that made the child unsafe? 9 What specific behaviors occurred to cause the safety threat to meet the safety threshold? 9 What, if any, is the family’s history of involvement with the Oklahoma Department of Human Services? How has this impacted the current case progress? 9 What underlying causes were identified that contribute to the safety threats? 9 Can the specialist compare, contrast, and discuss the original safety threats to the current safety threats. 9 What steps has the specialist taken to support the family in understanding the safety threats and conditions that need to occur to reunify? 9 Does the specialist believe the PRFC understands what led to the child being unsafe? If not, discuss with the specialist what can be done to help them understand. If the PRFC does not understand why there was a safety intervention he or she will struggle with understanding what his or her role is in correcting it.
5. Do any of these safety threats currently apply to the family’s circumstances? Living arrangements seriously endanger a child's physical health. PRFC(s) in the home lack the knowledge, skills, motivation, or abilities to perform parental duties and responsibilities. PRFC(s) intend(ed) to hurt the child. PRFC(s) does not have resources to meet basic needs. Child has exceptional needs which the PRFC(s) cannot or will not meet. Child is extremely fearful of the home situation. PRFC(s) is violent and/or is unwilling or unable to control the violence. PRFC(s) cannot or will not control behavior. PRFC(s) has extremely unrealistic expectations or extremely negative perception of the child.
9 If yes, how does the threat meet the safety threshold of: specific; severe; observable; occurring now or likely to occur within the next few days; out-of-control; and applicable to a vulnerable child?
9 What do ongoing collaterals, service providers, original collaterals, and family members, report the PRFC’s current functioning and protective capacities to be? If the case is more than six months old and an active safety threats still exists, discuss with the specialist concurrent planning and the steps needed to ensure safe and timely permanency.
153

Supervisory Feedback: In this section, the supervisor coaches the specialist and provides feedback to identify barriers to achieving timely permanency for this case. Based on the information gathered during the intentional case staffing, discuss with the specialist how his or her practice on this case contributed to safety in the placement, timely permanency, the placement's stability, and the well-being of the child(ren) while in out-of-home care. The supervisor discusses both what could have been done differently to improve practice and what was done well. Document below any action steps and due dates for the specialist to complete to achieve safe and timely permanency. Also document below any coaching notes.
______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
____________________________________________________________________

____________________________ Specialist/Date

_____________________________ Supervisor/Date

154

Field Observation Guide for Permanency Planning (PP) Supervisor

Case Name: ______________________ Supervisor:_______________________
____ Monthly Parent Worker Contact ____ Court Hearing/Related Activity

Date: _______________________________ Specialist:________________________ Observation Type
____ Family Meeting (CSM/FTM) ____ Monthly Contact with Child(ren)

Practice Note: Field observations should occur minimally with each worker every 90 days from completion of new worker certification. Observation types above should be rotated with each worker being observed in each setting annually.
6. Worker/Parent Contact Observation 9 Was the worker able to engage the parent/PRFC? 9 Did the worker go over the ISP and discuss progress and changes in behavior? 9 Did the worker adequately address the issues/barriers preventing the child from returning home? 9 Was the worker able to clearly discuss safety with the family? 9 Was the worker able to adequately answer and address any questions/concerns the PRFC(s) had? 9 Did the worker discuss the importance of timely permanency and address the 12 months to permanency goal? 9 Did the worker display any bias in their interactions with the parent/PRFC?
7. Court Hearing/Related Activity Observation 9 Was the worker able to articulate the current circumstances and behaviors impacting the safety of the child at the bench? 9 Was the information presented in the court report consistent with what was discussed during the court hearing? 9 Was the worker able to advocate for the recommendations made in the court report? 9 Did the worker present themselves in a professional manner? 9 Did the worker request the appropriate court findings?
8. Family Meeting Observation 9 Did the worker engaged and included the family in the decision making process? 9 Was the worker respectful of all participants?
155

9 Did the worker include the child in the family meeting? 9 Was the FTM focused on child safety, family functioning and permanency? 9 Were all options for timely permanency explored and discussed with the family? 9 Was the worker knowledgeable about all aspects of the current case circumstances and case
history (provider reports/previous history/current placement situation etc.)? 9 Did the worker display any bias during the family meeting?
9. Monthly Contact with Child Observation 9 Was the worker able to engage the child and placement provider in conversations about safety, permanency and well-being? 9 Was the worker able to gather the needed information to assess how the child(ren) are functioning in their out of home placement? 9 Does the worker have any concerns with the child(ren)’s placement? If so, were they able to effectively discuss them with the placement provider? 9 Was the worker able to engage the child(ren) in discussion about their relationships and feelings with other adults and children living in the home? 9 Did the worker see the child alone and discuss how the child feels safe in their placement? 9 Did the worker complete the child behavioral health screener during the visit?
5. Debriefing of the Field Observation
Supervisory Feedback: In this section, the supervisor coaches the specialist and provides feedback to identify practices strengths and areas needing improvement. Based on the information gathered during the field observation, discuss with the specialist how his or her performance contributed to safety in the placement, timely court outcomes, the placement's stability, and the well-being of the child while in out-of-home care. The supervisor discusses both what could have been done differently to improve practice and what was done well. Document below any action steps and due dates for the specialist to complete to achieve safe and timely permanency. Also document below any coaching notes.
Practice Strengths Identified and Discussed
_______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________
156

Practice Areas for Improvement Identified and Discussed
_______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________________________ _______________________________________________________________________
6. Follow -up items and due dates, if applicable

____________________________ Worker/Date

_____________________________ Supervisor/Date

157

Appendix F: U.S. District Court Order re: Laura Dester Children’s Shelter Case 4:08-cv-00074-GKF-FHM Document 880 Filed in USDC ND/OK on 06/05/18 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G., by Next Friend G. Gail Stricklin, et al.,
Plaintiffs,
v.
BRAD YARBROUGH, Chairman of the Oklahoma Commission for Human Services, et al.,
Defendants.

)

)

)

)

)

Case No. 08-CV-074-GKF-FHM

)

)

)

)

)

)

JUDGMENT
Pursuant to this court’s order denying the Motion to Vacate Pursuant to 9 U.S.C. § 10(a) [Doc. No. 875] of defendant Oklahoma Department of Human Services, the court hereby enters judgment as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the CoNeutrals of March 5, 2018 [Doc. No. 871, pp. 5-6] is adopted in its entirety, attached hereto, and entered as a judgment of this Court. Pursuant to the March 5 decision, the Oklahoma Department
158

of Human Services must, among other things, relocate the remaining children currently placed at the Laura Dester Children’s Center in Tulsa, Oklahoma to alternate, safe, needs-based placements by June 30, 2018.
ENTERED this 5th day of June, 2018.
159

Case 4:08-cv-00074-GKF-FHMDocument 8&3ffiFiled in USDC ND/OK on 06/05/18 Page 2 of 3

Ed Lake Director Oklahoma Department of Human Services Sequoyah Building 2400 N. Lincoln Oklahoma City, OK Via Electronic Transmission

March 5, 2018

Dear Director Lake:
During the last 12 months (March 2017 thru February 2018), DHS substantiated seven distinct referrals of child maltreatment at the Laura Dester shelter involving 10 children in DHS's child welfare custody . During the same period, DHS accepted for investigation 46 child maltreatment referrals that were either ruled out or unsubstantiated, and screened out an additional 53 referrals. Currently, there are five open investigations involving the treatment of children at the Laura Dester shelter. We are deeply concerned that DHS has not established a safe environment for the children who are placed in this state-operated facility.
Over the same 12-month period, DHS steadily increased the number of children (many with complex needs) placed at the shelter, often without establishing the necessary resources and organizational oversight and planning required to ensure these children receive the therapeutic care they need to live in a reasonably safe environment.
As DHS is aware, the Co-Neutrals have raised concerns regarding the lack of quality care and safety for the children placed at the Laura Dester shelter over the most recent 12 months, and well before then. In response to concerns discussed in March 2017, when DHS had approximately 25 children placed in the shelter, DHS reported that it would hire nine additional staff to improve the child-to-staff ratio and bring on specialized individuals to meet the specialized needs of the children placed in the facility. The Co-Neutrals conducted a site visit to the Laura Dester shelter in August 2017, and observed multiple safety issues and continuing staffing problems, which the Co-Neutrals reported to the Department.
After the Co-Neutrals found that ongoing and grave concerns for child safety at the shelter persisted, DHS in September 2017 developed a Continuous Improvement
160

Model Plan that included heightened monitoring by DHS' SPPU team and the
Case 4:08-cv-00074-GKF-FHM Document 8&3ffiFiled in USDC ND/OK on 06/05/18 Page 3 of 3
assignment of a full time SPPU liaison dedicated to monitoring the Laura Dester shelter. DHS also, again, committed to hire additional staff. Currently, there are 44 children placed at the Laura Dester shelter. Despite DHS' past or ongoing plans, the Laura Dester shelter continues to present an unreasonable risk of harm to children placed there. This is evidenced by the ongoing and alarmingly high number of child maltreatment referrals, investigations and substantiations of maltreatment of children placed at the shelter, and the monitoring notes of the SPPU liaison, which cite a wide range of serious concerns, many of which have also been observed directly by the CoNeutral team. The Department's diagnostic and remedial actions over the last year have not adequately improved the safety of children in the facility. Under Section 2.14 of the Compromise and Settlement Agreement, the CoNeutrals are granted the authority to require OHS to undertake and maintain diagnostic and remedial activities when the Department fails to achieve positive trending or begins to trend negatively in any area. In light of the negative trending DHS is showing with respect to the maltreatment of children in care and the number of children placed in shelters, particularly children ages six and older, the Co-Neutrals require DHS to cease immediately any new placements at the Laura Dester shelter. Further, the Co-Neutrals require that DHS develop and submit to the CoNeutrals a transition plan by April 1, 2018, to place all children out of the Laura Dester shelter by a date to be determined but not later than June 30, 2018. Sincerely, Eileen Crummy, Kathleen Noonan and Kevin M. Ryan
161

Appendix G: Placement Stability Communication All
Child Welfare Services strongly believes in the practice surrounding Initial Meetings (IMs) and the positive impact they have on placement stability for children placed in out-of-home care. Therefore, it is imperative that the information gathered through the attached initial meeting guide that is used to develop a Child and Family Support Plan for the child’s placement is documented in the KIDS contact. This allows the team to easily assess, review, and update the Child and Resource Family Support Plan on an ongoing basis.
The intended purpose of the Child and Resource Family Support Plan is to include the specific supports, services and/or other tools identified by the CPS, PP and Resource Specialists, Biological and Resource Parents, and Child(ren) that best support the safety, well-being and stability of the child in his or her resource home. A few examples of what supports or services could be in the Child and Family Support Plan, include, but are not limited to respite care, transportation, visitation, specific ways a child is best comforted, child’s likes or dislikes, and contact information for a local resource parent support group.
It is the expectation that the permanency planning specialist documents the completion of the IM within 5 business days and the contact screen provides detailed information from the IM.
The body of the contact must include:
x Efforts made to ensure all parties attended IM x Details from the initial meeting guide about the child(ren) x Details from the initial meeting guide about the Child and Resource Family Support
Plan. x Identification of staff responsible for implementing the Child and Resource Family
Support Plan.
Please refer questions to [Name Deleted] or to your regional placement stability lead.
Thank you
Jami Ledoux, MSW Child Welfare Services Director
162

Appendix H: Memorandum from child welfare director regarding Permanency Plan Selection
TO: CW Supervisors, District Directors, Deputy Directors, and Program Staff FROM: Jami Ledoux, Director Child Welfare Services (CWS) DATE: December 21, 2017 RE: Permanency Plan Selection
To clarify expectations in the selection of a child's permanency plan, revisions will be made to Oklahoma Administrative Code (OAC) 340:75-6-31. Permanency planning for the child in Oklahoma Department of Human Services (DHS) custody. In the interim, this memo outlines specific requirements that are effective immediately.
The permanency plan indicates the intended or desired outcome for each child and influences the services and interventions used to achieve the outcome. The permanency plan must be consistent with each child's legal status and in the child's best interests. Permanency plan options are:
(1) reunite the child with the child's parent or legal guardian; (2) terminate parental rights and place the child for adoption; (3) establish guardianship; or (4) planned alternative permanent placement (PAPP), provided the child is 16 years of age or older, and there is a compelling reason for the court to determine that returning home, or placement of the child for adoption or guardianship is not in the child's best interests.
The PAPP goal often results in the child aging out of care, which is the least desirable permanency plan. Research indicates children who age out of care are more likely to experience:
• unemployment; • living at or below poverty level; • serious untreated health conditions; • a crime as a victim or involvement in a criminal activity; • post-traumatic stress; or • homelessness.
To improve outcomes for children in OHS custody, additional efforts are required before PAPP is selected for a child 16 years of age or older. The child welfare (CW) supervisor must ensure these requirements are met and documented prior to considering PAPP as the permanency plan. These additional requirements are effective immediately.
• Must explore and document all other permanency plan options determined as not feasible or in the child's best interests.
163

• Identify a sufficient number of permanent connections the child can depend on after exiting care. Best practice is to identify at least six to 1O connections.
• Hold a family meeting (FM) with the child, all identified permanent connections, CW specialist, CW supervisor, and regional permanency expediter (PE) to discuss and agree upon the permanency plan that is in the child's best interests. The FM report must include a detailed description of how and why all other permanency options were ruled out and what ongoing steps will be taken to achieve permanency for the child.
• Ensure the child is actively engaging and participating in Oklahoma Successful Adulthood (OKSA) services.
• Assign the PE secondary assignment to the child when the child's goal is changed to PAPP.
If you have any questions, please contact any Permanency Planning Programs staff.
Jami Ledoux, Director Child Welfare Services
164

ATAT CANH CAP CHBS CPS CQI CSA CWS51 DDS DHS FAS FFY FSP ITS LD MIC MST NCANDS OAYS OCA ODMHSA

Glossary 1: Acronyms Adoption Timeliness Accountability Team Child Abuse and Neglect Hotline Corrective Action Plan Comprehensive Home-Based Services Child Protective Services Department of Human Services Continuous Quality Improvement Compromise and Settlement Agreement Child Welfare Specialist Developmental Disabilities Services Oklahoma Department of Human Services Facility Action Step Federal Fiscal Year Facility Services Plan Instructions to Staff Laura Dester Shelter (state-operated) Maltreatment in Care Mobile Stabilization Team National Child Abuse and Neglect Data System Oklahoma Association of Youth Services Department of Human Services Office of Client Advocacy Oklahoma Department of Mental Health and Substance Abuse

51 CWS additionally is the acronym for Child Welfare Services – the agency within DHS that is charged with improving the safety, permanence and well-being of children and families involved in the Child Welfare system.
165

OHCA PEM RFP RFP PRT PSC SFY SPPU TFC WPC YSA

Oklahoma Health Care Authority Pauline E. Mayer Shelter (state-operated) Request for Proposals Resource Family Placement Permanency Roundtable Permanency Safety Consultation State Fiscal Year Specialized Placements and Partnerships Unit Therapeutic foster care Written Plan of Compliance Youth Services Agency

166

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.G., by Next Friend G. Gail Stricklin; et al., Plaintiffs,
v.
BRAD YARBROUGH, Chairman ofthe Oklahoma Commission for Human Services, et al.,
Defendants.

) ) ) ) ) Case No. 08-CV-074-GKF-FHM ) ) ) )

COMPROMISE AND SETTLEMENT AGREEMENT
This Compromise and Settlement Agreement (the "Settlement Agreement") has been executed on the dates set forth on the execution page hereof but made effective as of December 15, 2011, by and between the Class Representatives (as defined below in Paragraph 1.4), on behalf of themselves and as representatives of the Plaintiff Class (as defined below in Paragraph 1.11), Class Counsel (as defined below in Paragraph 1.2) and Settling Defendant (as defined below in Paragraph 1.17). The settlement contemplated by this Settlement Agreement is conditioned on the approval of the United States District Court for the Northern District of Oklahoma, as required by Rule 23 of the Federal Rules of Civil Procedure.
RECITALS
A. Whereas, the Class Representatives, on behalf of themselves and as representatives of the Plaintiff Class, have asserted various claims against Settling Defendant in the Class Action Litigation (as defined below in Paragraph 1.1) as more fully described in the Complaint, attached hereto as Exhibit A;
B. Whereas, Settling Defendant has denied those various assertions and has defended vigorously against them;
C. Whereas, the Class Representatives, on behalf of themselves and as representatives of the Plaintiff Class and Settling Defendant have worked to resolve their differences and have elected to settle those differences as set forth in this Settlement Agreement;
D. Whereas, the parties intend by this Settlement Agreement to resolve any and all Released Claims (as defined below in Paragraph 1.14) of the Settlement Class against the Released Parties (as defined below in Paragraph 1.15) in accordance with the terms hereof;

1

Now, therefore, the Class Representatives, on behalf of themselves and as representatives of the Plaintiff Class, the Plaintiff Class, and Settling Defendant, in consideration of the execution of this agreement and the mutual recitals and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:
DEFINITIONS
1.1 Class Action Litigation shall mean D.G., by Next Friend, G. Gail Stricklin, et aI., v. Brad Yarbrough, Chairman of the Oklahoma Commission for Human Services, et aI., Case No. 08cv0074-GKF-FHM now pending in the United States District Court for the Northern District of Oklahoma ("Court").
1.2 Class Counsel shall mean Angela R. Vicari, Frederic Dorwart, Ira P. Lustbader, John S. Cahalan, Marcia R. Lowry, Paul DeMuro, Phillip A. Geraci, R. Thomas Seymour, Scott A. Graham, William Kapell, Miriam F. Ingber, Patrick S. Almonrode, Jodi K. Miller, Laurence D. Borten, Philip G. Barber, and Sarah T. Russo.
1.3 Class Counsel Fees and Expenses shall mean reasonable fees and expenses of Class Counsel in an amount to be determined by the Court, provided the services and expenses of Frederic Dorwart Lawyers have been and will be provided pro bono for the benefit of the Plaintiff Class. The Court shall retain jurisdiction to make this determination. The Named Plaintiffs and Next Friends shall not seek or be awarded compensation in return for their role in the Class Action Litigation. Settling Defendant stipulates that Class Counsel is entitled to Class Counsel Fees and Expenses but reserves the right to dispute the amount of Class Counsel Fees and Expenses.
1.4 Class Representatives shall mean the named plaintiffs appointed by the Court in the Class Action Litigation.
1.5 Final Approval shall mean the date upon which the Judgment approving the settlement . becomes Final. The word "Final" means the latter of the date of final affirmance on an appeal,
the expiration of the time for a petition for writ of certiorari, and if certiorari is granted, the date of final affIrmance following review pursuant to that grant, or the final dismissal of any appeal or the final dismissal of any proceeding on certiorari, or if no appeal is filed, the expiration of the time for the filing or notice of any appeal from the Court's final decision. Objections or conflicting claims regarding rights of Class Members to opt out or any other claim shall not affect Final Approval unless so ordered by the Court.
1.6 Hearing for Preliminary Approval of Settlement means proceedings before the Court for the purpose of presenting a motion for preliminary approval of this Settlement Agreement and an order preliminarily approving this Settlement Agreement in substantially the form attached hereto as Exhibit B.
1.7 Judgment means the Order of the United States District Court for the Northern
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District of Oklahoma finally approving the Settlement Agreement among Settling Defendant and the Settlement Class, which shall be substantially in the form of Exhibit C hereto.
1.8 Foster Parent means any person approved by the Department to act as custodian of or to take custody of any Plaintiff Class Member.
1.9 Notice of Settlement means the notice to the Class Members who are not named class representatives of: (a) this Settlement Agreement; (b) Class Counsel's request for an award of Class Counsel Fees and Expenses; and (c) the time, date and place of Settlement Fairness hearing. The Notice of Settlement shall be substantially in the form of Exhibit D hereto.
1.10 The Oklahoma Department of Human Services is refened to herein as "the Department" or "DRS."
1.11 Plaintiff Class or Class Member or Plaintiff Class Member or Settlement Class or Settlement Class Member means each member of the Class certified in the above action by virtue of the Order dated May 8, 2009 in this Class Action Litigation. (Dkt. # 272). The Plaintiff Class is more specifically described as follows:
All children who are or will be in the legal custody of the Oklahoma Department of Ruman Services (1) due to a report or suspicion of abuse or neglect; or (2) who are or will be adjudicated deprived due to abuse or neglect.
1.12 Plan of Notice means the following procedures for providing Notice of Settlement to the Class Members. Notice of Settlement will be made by the Department by (a) posting the Notice of Settlement in a conspicuous and public location within each of its offices, (b) providing the Notice of Settlement to each group home, congregate living facility, institution, and child placing agency where Plaintiff Class Members are placed or which the Department contracts with for the provision of foster care services to Plaintiff Class Members, (c) providing the Notice of Settlement to the judges and clerks of each family court in the state of Oklahoma, and (d) providing the Notice of Settlement to each Class Member who is fourteen years or older by mailing the Notice of Settlement to that Class Member's cunent foster home.
1.13 Preliminary Approval Date shall mean the date the Court enters an order preliminarily ,approving the settlement pursuant to the motion filed in accordance with paragraph 3.1.
1.14 Released Claims means all claims and causes of action, known or unknown, whether arising in contract, tort or based upon constitutional, statutory, or regulatory obligations, andlor based upon any theory whatsoever, arising or accruing against the Released Parties on or before the date of Final Approval, relating to the Plaintiff Class Members and activities involving the Plaintiff Class Members, and any duties, actions or inactions of the Released Parties with respect thereto, which were asserted or could have been asserted in the Class Action Litigation.
1.15 Released Parties shall mean the Settling Defendant, including any entity or agency of the State of Oklahoma, past and present, and its respective agencies, officers, and elected or appointed officials.
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1.16 Settlement Fairness Hearing means the proceedings to be held before the Court to determine whether this Settlement Agreement should be finally approved as fair, adequate and reasonable; and whether the Judgment should be entered.
1.17 Settling Defendant shall mean the Oklahoma Commission for Human Services, including all of its current members, any members serving during the Class Action Litigation, and any future members serving during the term of the Settlement Agreement, the Director of Human Services (currently Howard Hendrick), and the Department.
1.18 Co-Neutrals means Kathleen G. Noonan, Kevin M. Ryan, and Eileen Crummy. In no event shall there be less than two Co-Neutrals. In the event one of the Co-Neutral becomes unable or unwilling to serve or to continue to serve as a Co-Neutral, then the Co-Neutrals shall consist of the remaining two. The Co-Neutrals may mutually agree that only two Co-Neutrals are necessary for the purposes of the Settlement Agreement and, by agreement, one may resign under those circumstances, leaving only two Co-Neutrals and the third Co-Neutral need not be replaced. In the event any of the Co-Neutrals becomes unable or unwilling to serve or to continue to serve as a Co-Neutral and there are only two Co-Neutrals at that time and no agreement has been reached that only two Co-Neutrals are necessary, then Settling Defendant and Class Plaintiffs shall attempt to agree, in consultation with the remaining Co-Neutral(s), on a replacement. If, within thirty (30) days, no agreement is reached, the Settling Defendant and Class Plaintiffs shall each submit two names to the remaining Co-Neutral(s). The remaining CoNeutral(s) shall, within thirty (30) days, select a replacement Co-Neutral(s) from the list, subject to the approval of Settling Defendant and Class Plaintiffs, which approval shall not be unreasonably withheld. If Settling Defendant or Class Plaintiffs withhold approval, then the selection shall be governed by the provisions of the Federal Arbitration Act ("FAA"). If all three Co-Neutrals become unable or unwilling to serve or continue to serve, then the selection of new Co-Neutrals shall be governed by the provisions of the "FAA" as those provisions relate to the selection of a replacement arbitrator. The Co-Neutrals may adjust any time frame contained within this Settlement Agreement that, in their sole discretion, is impacted by the loss of one or more Co-Neutrals.
AGREEMENT
2.1 Commencement of Obligations. The obligations of the Settling Defendant contained in the Settlement Agreement shall commence on the Preliminary Approval Date. However, Class Plaintiffs may not enforce those obligations, and no award may be rendered or entered with respect to those obligations, until the date of Final Approval.
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2.2 Dismissal with Prejudice and Scope of Court's Continuing Jurisdiction. Upon Final Approval of this Settlement Agreement, as defined in Section 1.5, the parties will file a stipulation of dismissal, requesting that the Court dismiss the Class Action Litigation with prejudice. A dismissal with prejudice is a condition precedent to the Department's obligations and commitments in Section 2.10, except as provided in Section 2.1. Notwithstanding the dismissal of the Class Action Litigation with prejudice, the District Court shall retain limited jurisdiction to enter necessary orders enforcing the Co-Neutrals' decisions as provided for herein, and to consider any appeal of the Final Report provided in 2.15(b). The parties stipulate and agree not to contest the jurisdiction of the Court for enforcement purposes and appeal purposes and approval of Class Counsel Fees and Expenses.
2.3 Acknowledgement of Final Approval. Within ten (10) business days after the date of Final Approval, Class Counsel shall file with the Court a pleading acknowledging that the Judgment has become final and that the Released Claims have been released.
2.4 Claims Released. Each member of the Settlement Class releases the Released Claims against the Released Parties on the date of Final Approval.
2.5 Governing Law. This Settlement Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Oklahoma (without regard to any conflict of laws principles).
2.6 No Waiver. No delay or omission by any party in exercising any of their rights under this Settlement Agreement will operate as a waiver of that or any other right. A waiver or consent given by a party on anyone occasion is effective only in that instance and will not be construed as a bar or waiver of any right on any other occasion, unless otherwise agreed in writing.
2.7 Nature of Agreement. This Settlement Agreement shall be binding and enforceable against the parties, but it is not, nor shall it be construed to be, a consent decree.
2.8. Co-Neutrals.
(a) The Co-Neutrals shall act as arbiters of any dispute between the parties arising out of this Settlement Agreement, whether or not the subject matter of the dispute is specifically identified herein. The Co-Neutrals decision regarding any dispute shall be final, and the Co-Neutrals may establish, in their sole discretion, the procedure for resolving any dispute, except that the Co-Neutrals may not, without written pennission of all parties and approval of the Co-Neutrals, alter the dates or the timing expressly identified in this Settlement Agreement (except as set forth in Section 1.18).
(b) The parties agree that neither they, nor any employee or agent of either party, shall have any supervisory authority over the Co-Neutrals or their activities, reports, findings, or recommendations.
(c) The retention ofthe Co-Neutrals shall be conducted pursuant to the procedures set forth in this Settlement Agreement.
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(d) The Co-Neutrals shall have free and complete access to records maintained by DHS, its divisions and any successor agencies or divisions, and by its private contract agencies, following the procedures set forth in Title lOA, Section 1-6-103(A)(9) of the Oklahoma Statutes. The Co-Neutrals shall also have free and complete access to the staff of DHS; its divisions and any successor agencies or divisions; persons within the executive branch; and DHS shall facilitate access to private agencies working with DHS; and children in the custody ofDHS.
(e) After execution of the Settlement Agreement, the Department shall, as soon as practical, retain the services of the Co-Neutrals for the period of the Settlement Agreement; however, the Co-Neutrals may begin work under the Settlement Agreement as soon as it is approved by the Contingency Review Board (as contemplated in Section 5.10). Payment of the Co-Neutrals shall be addressed as follows: (1) The Department shall enter into a professional services contract to secure payment of the Co-Neutrals, and the first such contract shall be for a period of not less than one year with the option to renew on an annual basis up to three years; and (2) As part ofthe professional services contract, the Co-Neutrals shall have a budget and staff sufficient to allow the Co-Neutrals to carry out the responsibilities described in the Settlement Agreement, and may contract with such experts or consultants as the Co-Neutrals may deem appropriate. The Co-Neutrals agree to reasonable and customary fees and to actual expenses which will be reimbursable pursuant to the terms of the professional services contract. Nothing in this Settlement Agreement shall be read to prevent the involvement of a foundation or other third party in the funding of all or part of the annual expense of the Co-Neutrals' work pursuant to this Settlement Agreement (whether or not a professional services contract is executed).
(f) The Co-Neutrals are not a state or local agency or an agent thereof, and accordingly the records maintained by the Co-Neutrals shall not be deemed public records subject to public inspection. Neither the Co-Neutrals nor any person or entity hired or otherwise retained by the Co-Neutrals to assist in furthering any provision of this Agreement shall be liable for any claim, lawsuit, or demand arising out of the Co-Neutrals' good-faith performance pursuant to this Agreement. Except as otherwise required by law, any reports, opinions, or documents used or prepared by the Co-Neutrals or their staff shall be used for the purposes of this case only and may not be used for any other purpose, without the prior written consent of Defendant.
2.9 Enforcement of Co-Neutral Decision. With the written majority agreement of the CoNeutrals (and only with such agreement), any decision of the Co-Neutrals may be presented to the Court for entry as a judgment in accordance with the procedures set forth in the FAA. The parties acknowledge that the FAA may, or may not, apply to the subject matter of the Lawsuit; therefore, the parties expressly incorporate the procedural provisions of the FAA into this Settlement Agreement as if those provisions were expressly set forth herein, except that the provisions of the Settlement Agreement control in the event of any inconsistencies between the FAA and the Settlement Agreement. A decision of the Co-Neutrals can be vacated by the Court only upon a judicial determination that one or more of the grounds set forth in 9 U.S.C. § 10(a)(1)-(4) exists. Once a decision of the Co-Neutrals has been entered as a judgment by the Court, it may be enforced by Class Counsel, the Class Representatives and the Plaintiff Class.
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2.10 Child Welfare Plan.
(a) By March 30, 2012 the Department shall submit a child welfare plan ("Plan") to the CoNeutrals and Class Plaintiffs and provide a copy to counsel for the Group Homes (as defined in dkt. #2). The Department may consult with the Co-Neutrals during the Plan development process. The Governor of Oklahoma may designate members of her staff and the Speaker of the Oklahoma House of Representative and President Pro Tempore of the Senate may select members of the Legislature who will participate in the development of the Plan. The Plan will set forth: specific strategies to improve the child welfare system as it relates to the Performance Areas (as defined below); specific structural and/or organizational changes needed to implement the strategies; and the anticipated· cost for implementation. The Plan must specifically target, but need not be limited to, the following performance areas ("Performance Areas"):
(1) child abuse and neglect in care,
(2) the number of foster homes available for children in need of therapeutic care,
(3) the number of foster homes available for children not in need of therapeutic care,
(4) visitation of children by case workers,
(5) continuity of visitation by the same case worker,
(6) on an annual basis, the average number of placements experienced by a child two years old or older, excluding the ten percent of children with the least number of changes in placement and the ten percent of children with the highest number of changes in placement,
(7) the actual number of placements for each child two years old or older that is in the ten percent of children two years old or older with the highest number of changes in placements,
(8) on an annual basis, the average number of placements experienced by a child under two years old, excluding the ten percent of children with the least number of placements and the ten percent of children with the highest number of placements,
(9) the actual number of placements for each child under two years old who is in the ten percent of children under two years old with the highest number of placements,
(10) as of March 31 and September 30 of each year, the number of children in shelters delineated by even ages (i.e., younger than 2 years, 2 years old to 4 years old, 4 years old to 6 years old, ... ),
(11) during the same six month time period (April through September and October through March), the average stay in a shelter for each age group identified in subparagraph (10), excluding the ten percent of children with the shortest stay in a shelter and the ten percent of children with the
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longest stay in a shelter,
(12) the actual length of stay for each child that is in the ten percent of children with the longest stay in a shelter,
(13) permanency (i.e., the child exits the system with a connection to a permanent family),
(14) adoption, including adoption failure rates, and
(15) caseload.
(b) The Department shall consult with the Co-Neutrals to identify a data expert to establish baseline measures and target outcomes for the Performance Areas. It is permissible for the expert to be an existing consultant to, or employee of, the Department, but the expert shall be subject to the Co-Neutral's approval. The Department's engagement of an expert should occur no later than one month after the signing of this Settlement Agreement. The expert will work with the Department to develop its internal capacity to report on the Performance Areas identified above, and in the Plan. The Co-Neutrals will meet with the Department and the Expert to ascertain progress towards the development of the Plan, as needed.
(c) The Department shall share drafts of the Plan routinely with the Co-Neutrals, and as requested by the Co-Neutrals. The Plan may incorporate existing planning goals and priorities of the Department.
(d) The Co-Neutrals will hold discussion meetings with the Department and Class Plaintiffs (the "Progress Update Meetings"). These Progress Update Meetings will be an opportunity to apprise Class Plaintiffs of progress on the implementation of the Plan and to discuss and resolve any concerns. It is contemplated that the Progress Update Meetings will occur at least on a quarterly basis and will begin after the acceptance of the Plan by the Co-Neutrals and will continue until the Settlement Agreement Terminates in accordance with Section 2.15; however, the date, time, and length of such meetings, and the number of such meetings, shall be left to the sole discretion of the Co-Neutrals.
(e) The Class Plaintiffs shall have fifteen (15) days to submit comments regarding the proposed Plan to the Co-Neutrals. The Co-Neutrals shall, thereafter, review the Plan and, within 30 days, endorse the Plan or decline to endorse the Plan. The Department may seek funding for the Plan from the Oklahoma State Legislature at any time, including during the review period.
(f) I fthe Co-Neutrals endorse the Plan, then the Department shall have 75 days to submit a report to the Co-Neutrals and to the Class Plaintiffs. The report shall identify specific baseline measurements with respect to each of the Performance Areas identified in Section 2.10(a) ("Baselines") and specific target outcomes and/or performance standards ("Target Outcomes"). Any Performance Area contained in the Plan but which is not expressly identified in Section 2.1O(a) may be included in the Department's report, but such Performance Area shall not be a mandatory part of the implementation of this Settlement Agreement and cannot form the basis of a violation, although the Co-Neutrals may consider the Department's efforts toward such Performance Area(s) when determining whether the Department has proceeded in good faith (as set forth in Section 2.15). Within 45 days of receipt of the Department's report, the Co-Neutrals shall endorse or reject the Baselines and
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the Target Outcomes on an individual basis. The Co-Neutrals may retain at their discretion an expert to help the Co-Neutrals determine the validity of the Department's proposed Baselines and Target Outcomes and ongoing data production. For any Baseline or Target Outcome, the parties shall have 15 days to submit comments, briefing, or argument to the Co-Neutrals. Thereafter, but in no event later than 90 days, the Co-Neutrals shall issue revised Baselines and Target Outcomes, which shall not be subject to further review by any party but may, at the discretion of the Co-Neutrals (after providing the parties an opportunity to comment), be revised by the Co-Neutrals. The Baselines and Target Outcomes shall become an amendment to the Plan.
(g) If the Co-Neutrals reject the Plan, then the Department shall, under the guidance of the Co-Neutrals, and in consultation with the legislative and gubernatorial representatives, have an additional 30 days to modify the Plan, at which time the Plan may be resubmitted to the Co-Neutrals and plaintiffs. If the revised Plan is endorsed, then the Department shall proceed as set forth in Section 2.9(f). If the Plan is rejected a second time, the Co-Neutrals may designate a third party not affiliated with plaintiffs to modify the Plan or create a new plan, or the Co-Neutrals, in their sole discretion, may do so themselves. The Department shall fully cooperate with any third party designated by the Co-Neutrals and with the Co-Neutrals during this process. No later than 75 days after the second rejection, the Co-Neutrals will provide the Plan to all parties, who shall have 15 days to provide comments, briefing, or argument to the Co-Neutrals for the purpose of seeking changes to the Plan. Within 15 days thereafter, the Co-Neutrals shall issue the Plan, which shall not be subject to further amendment by any party. The Department shall then proceed as set forth in Section 2.10(f) and all subsequent deadlines contained in this Agreement shall be extended by 180 days.
(h) If the Department believes that the Plan cannot be implemented without appropriations to the Department in excess of existing funding to the Department by the State of Oklahoma, the Department, pursuant to Section 200 of Title 51 of the Oklahoma Statutes, shall seek to obtain the approval of the Oklahoma Legislature or the Contingency Review Board of any such required appropriations. The Attorney General shall provide advice and guidance to the Contingency Review Board and the Legislature in their review of the Department's request for funds necessary to implement the Plan. Request by the Department to the Legislature or the Contingency Review Board of any additional funding to implement the Plan shall be considered by the Co-Neutrals in determining a finding of good faith efforts in implementing the Plan by the Department pursuant to Section 2.15 of this Agreement. Notwithstanding any such request for appropriations, the Department shall proceed to implement the provisions of the Plan in good faith, subject to the foregoing provisions.
(i) On the date that the Baselines and Target Outcomes are accepted or determined by the Co-Neutrals (the "Acceptance Date"), the Department shall proceed to implement the Plan and shall issue reports to the Co-Neutrals and Class Plaintiffs measuring the Department's progress toward achieving the Target Outcomes. The reports shall be submitted monthly beginning with the third month after the Acceptance Date, shall be issued on or before the 20th day of each month (or the first business day thereafter) for the prior month, and shall measure progress on a monthly basis (e.g., if the Acceptance Date is June 7, then the first report shall be for September and shall be issued by October 20). Although the reports will be issued pursuant to the terms of this Settlement Agreement, the data in the reports shall be incorporated into routine public reporting by the Department and shall continue after the conditions of this Settlement Agreement are met. The Co-Neutrals shall issue a finding
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within 60 days of having received the first report stating whether or not the report provides sufficient information to measure accurately the Department's progress toward the Target Outcomes. The Co-Neutrals may revise this finding from time to time as they deem appropriate for subsequent reports. If the Co-Neutrals find that a report does not provide sufficient information to measure accurately the Department's progress, then the Department shall revise the report as required by the Co-Neutrals until the report meets this requirement. Twice annually, the Co-Neutrals shall provide commentary regarding the Department's overall progress as reflected by the reports and shall provide commentary as to whether the Department is making good faith efforts pursuant to Section 2.15 of the Settlement Agreement. The Co-Neutrals may, in their discretion: confirm independently the data and statistics in the reports and/or require additional data as they deem necessary to demonstrate performance pursuant to this Settlement Agreement; and conduct such record reviews, quantitative or qualitative analysis as the Co-Neutrals deem necessary to determine the Department's compliance with this Settlement Agreement. The reports, commentary, and findings described in this paragraph shall not be subject to appeal but may be included in the record on appeal as provided in Section 2.15(b).
2.11 Co-Neutral Access to Department. Without limiting any other provision of the Settlement Agreement, the Co-Neutrals, and their designates, shall have free and unfettered access to the Department's staff and documents in order to perform their duties and in order to exercise the powers conferred herein. The Department shall cooperate fully and comply with any request made by the Co-Neutrals.
2.12 Target Outcome Findings. On or before October 15, 2014, the Co-Neutrals shall issue written findings to Settling Defendant and Class Counsel identifying for the period through June 30, 2014, in the Co-Neutrals sole discretion: those Target Outcomes that have been met; those Target Outcomes for which the Department has achieved sustained, positive trending toward the Target Outcomes; and those Target Outcomes for which the Department has not achieved sustained, positive trending (collectively, the "Target Outcome Findings"). These findings are not subject to review. A second Target Outcome Findings report shall be issued to Settling Defendant and Class Counsel on or before October 15, 2015, for the period through June 30, 2015. The Target Outcome Findings shall replace one of the Co-Neutrals' twice annual commentaries as referenced in Section 2.10(h).
2.13 Continued Reporting. Even if the Department meets one or more Target Outcomes or achieves sustained, positive trending toward one or more Target Outcomes during the term of this Settlement Agreement, the Department will continue to report to the Co-Neutrals on all of the Performance Areas in this Settlement Agreement.
2.14 Diagnostic and Remedial Activities. If the Department fails to achieve positive trending or begins to trend negatively in any area, the Co-Neutrals can at any time require the Department to undertake and maintain diagnostic and remedial activities in that performance area.
2.15 Final Report. (a) On December 15,2016, the Co-Neutrals shall issue a final report. The final report, in addition to the information contained in the Target Outcome Findings referenced above, shall include a finding that the Department has, or has not, made good faith efforts to
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achieve substantial and sustained progress toward each Target Outcome. If the Co-Neutrals find that the Department has made, for a continuous period of at least two years prior to December 15, 2016, good faith efforts to achieve substantial and sustained progress toward each Target Outcome, then the Department's obligations under this Settlement Agreement shall terminate and the parties shall jointly seek to vacate any Judgment entered by the Court as a result of a finding or decision by the Co-Neutrals. If the Co-Neutrals find that the Department has not made good faith efforts to achieve substantial and sustained progress toward each Target Outcome, the Department shall continue to be subject to the terms of this Settlement Agreement for successive one year periods, with a continuation of the identified reporting requirements. At the end of each such period, the Co-Neutrals shall issue additional Target Outcome Findings until such time as the Co-Neutrals find that the Department has made, for a continuous period of at least two years prior to the report, good faith efforts to achieve substantial and sustained progress toward each Target Outcome.
(b) The parties agree each has a right to appeal to the Court the Final Report of the Co-neutrals issued on December 15, 2016. The parties agree that if Magistrate Judge Wilson is still serving as a magistrate for the United States District Court for the Northern District of Oklahoma, or is still serving as a member of the federal judiciary, he shall hear any appeal of the Final Report so long as doing so does not violate any federal rule or statute. The parties hereby consent to disposition by Magistrate Judge Wilson in accordance with Title 18, Section 636(c)(1) of the United States Code for this purpose. If Magistrate Judge Wilson is unable to hear the appeal, then the appeal shall be to the District Court. A notice of appeal shall be filed within thirty (30) days of the date the Final Report. The standard of review for any such appeal of the Final Report shall be the standard of "arbitrary and capricious." After a notice of appeal is filed, the parties will request a schedule from the court regarding completion of the record and submission of briefs. The record for the appeal shall be limited to this Settlement Agreement, the Child Welfare Plan and any amendments or appendices attached thereto, Co-neutrals' reports (including but not limited to their written commentary and findings) and the documents relied upon by the Co-neutrals to make those reports, and the reports/written responses from the parties to the Co-neutrals and documents relied upon by the parties to make those reports/written responses which were provided to the Co-neutrals for their consideration. This right to appeal is considered a final appeal limited to Magistrate Judge Wilson or, if he is unable to hear the appeal, to the District Court, and the decision of either will be final and unappealable to the District Court, Tenth Circuit or other court of any jurisdiction. It is agreed by the parties that in the event an appeal is filed, but is unsuccessful, the non-appealing party shall be entitled to recover the reasonable attorney fees and costs incurred in defending an unsuccesful appeal.
COURT APPROVAL OF THE SETTLEMENT AND CONTINUING JURISDICTION OF THE COURT
3.1 As soon as practicable after the execution of this Settlement Agreement, Class Representatives and Class Counsel will file a motion seeking: (a) preliminary approval of this Settlement Agreement; and (b) authority for the Department to provide notice of the proposed settlement to the Plaintiff Class. Class Counsel will also file a motion for Class Counsel Fees and Expenses.
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3.2 After notice of: (a) the proposed settlement; and (b) Class Counsels' request for Class Counsel Fees and Expenses, the Court shall be requested to enter Judgment, substantially in the form attached hereto as Exhibit C, approving the settlement between Settling Defendant and the Plaintiff Class, and specifically approving the terms of this Settlement Agreement. The Judgment shall:
a. Approve the settlement between Settling Defendant and the Settlement Class embodied in this Settlement Agreement, without modification of its terms in any respect, unless all Parties agree to such modifications, as fair, reasonable and adequate to the Plaintiff Class within the meaning of Federal Rule of Civil Procedure 23;
b. Dismiss with prejudice the Class Action Litigation;
c. Adjudge that each Settlement Class Member shall be deemed conclusively to have released the Released Claims against the Released Parties;
d. Bar and permanently enjoin all Settlement Class Members from prosecuting, commencing or continuing any of the Released Claims against the Released Parties;
e. Include a finding that the settlement between Settling Defendant and the Settlement Class is fair, reasonable and was entered into between Settling Defendant and the Settlement Class in good faith and without collusion;
f. Include a finding that, by agreeing to settle the Class Action Litigation, Settling Defendant does not admit, and specifically denies, any and all liability to the Plaintiff Class, the Class Representatives and Class Counsel; and
g. Incorporate the Settlement Agreement and provide that the Court retains jurisdiction as set forth herein.
FAILURE TO OBTAIN APPROVAL OF SETTLEMENT
4.1 If the Court does not enter an order preliminarily approving this settlement, without modification of its terms in any respect, unless all parties agree to such modifications, or does not enter a Judgment approving the settlement (including, without limitation, the provisions of Paragraph 3.2 above) between Settling Defendant and the Settlement Class after appropriate notice of the Settlement Fairness Hearing, in conformity herewith, or if the Court enters Judgment approving the settlement between Settling Defendant and the Settlement Class and appellate review of said Judgment is sought and upon such review such Judgment is reversed, in whole or in part, then this Settlement Agreement between Settling Defendant and the Settlement Class shall immediately become null and void ab initio. It is specifically agreed that any failure of the Court to approve the Motion for Class Counsel Fees and Expenses in the amounts sought by Class Counsel shall not affect the validity of this Settlement Agreement.
MISCELLANEOUS
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5.1 Settling Defendant contends that all claims and allegations, individually and collectively, of the Class Representatives and the Plaintiff Class in the Class Action Litigation are without merit. Settling Defendant expressly denies all allegations of wrongdoing or liability with respect to the claims and allegations. It is expressly agreed that neither this Settlement Agreement nor any document referred to herein, nor any action taken to carry out this Settlement Agreement is, may be construed as, or may be used as an admission by Settling Defendant of any fault, wrongdoing or liability whatsoever with respect to the claims and allegations in the Class Action Litigation. By agreeing to settle the claims of the Plaintiff Class in the Class Action Litigation, Settling Defendant does not admit that the Class Action Litigation is properly maintained as a class action and the Plaintiff Class does not admit any deficiency in the merits of its claims. 5.2 The Class Representatives, the Settlement Class and Settling Defendant agree to settle the claims of the Plaintiff Class asserted against Settling Defendant in the Class Action Litigation and to execute this Settlement Agreement solely to compromise and settle protracted, complicated and expensive litigation. Neither the entering into or carrying out of the Settlement Agreement, nor any negotiations or proceedings related thereto shall be construed as, or deemed to be evidence of, an admission or concession by any of the parties to this Settlement Agreement. 5.3 The Notice of Settlement shall require that any objection to the settlement between Settling Defendant and the Plaintiff Class be in writing and be filed with the Office of the Court Clerk of the Northern District of Oklahoma and served on all parties at least ten (10) days prior to the Settlement Fairness Hearing.
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5.4 Each of the parties to this Settlement Agreement shall use its best efforts to cause the settlement between Settling Defendant and the Settlement Class to be approved and consummated.
5.5 This Settlement Agreement and the exhibits attached hereto constitute the entire agreement among the parties hereto related to the Class Action Litigation and no representations, warranties or inducements have been made to any party concerning this settlement other than the representations, warranties and covenants contained and memorialized in this Settlement Agreement.
5.6 This Settlement Agreement may be executed in one or more counterparts, including by facsimile and/or imaged signatures. All executed counterparts taken together shall be deemed to be one and the same instrument. Counsel for the parties to this settlement shall exchange among themselves original signed counterparts and a complete set of original executed counterparts shall be filed with the Court.
5.7 The parties and their counsel have mutually contributed to the preparation of this Settlement Agreement. Accordingly, no provision of the Settlement Agreement shall be construed against any party on the grounds that one of the parties or its counsel drafted the provision.
5.8 The Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.
5.9 The undersigned each represents that he or she is fully authorized to execute this Settlement Agreement on behalf ofthe settling party for which he or she signs.
5.10 The parties understand that approval of the Contingency Review Board is a condition precedent for enforcement and consummation of this Agreement. Settling Defendant shall present this Settlement Agreement to the Contingency Review Board for approval expeditiously and, in no event, later than December 30, 2011. The obligations of the Plaintiff Class under this Agreement are subject to the conditions precedent that (i) the Oklahoma Commission for Human Services and the Contingency Review Board shall have approved this Agreement on or before December 30, 2011 and (ii) The Governor of the State of Oklahoma shall designate the CoNeutrals as parties entitled to access as contemplated by Title lOA, Section 1-6-103(A)(9) of the Oklahoma Statutes, which conditions the Plaintiff Class may waive in its sole discretion.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement in several counterpart originals on the date set forth opposite their names.
SIGNATURE PAGE
Wherefore, the parties hereto signify their agreement to this Settlement Agreement and to all the terms herein by signing where indicated below.
14

FOR AND ON BEHALF OF THE SETTLING DEFENDANT:
Dated _--''----~~~=_ _ _ _ __
APprove~t;;A
Dated~{)/?--fI­
D. KENT MEYERS 87rl:Zt~~ /:;?t#jvV/ /
1800 Mid-America Tower 20 North Broadway Oklahoma City, OK 73102-8273 FOR AND ON BEHALF OF THE PLAINTIFF CLASS:
FREDERIC DORWART FREDERIC DORWART, LAWYERS Old City Hall 124 East Fourth Street Tu a, OK 74193
Date _ _ _-#-'<~"-""'--~Il<---""'--_,;:_-MARCIA ROBINSON LOWRY CHILDREN'S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001
15

 
 Co-Neutral Commentary Two
Issued April 2014
Compromise and Settlement Agreement
(D.G. vs. Yarborough, Case No. 08-CV-074)

Table of Contents
I. Introduction .......................................................................................................................................... 3 II. Background ........................................................................................................................................... 4 III. Seven Performance Categories: Assessment of Data Sufficiency, Progress and Good Faith Efforts ... 5
A. Foster Care and Therapeutic Foster Care Homes ............................................................................. 6 B. Caseworker Caseloads and Supervisor Workloads ......................................................................... 12 C. Shelter Use ...................................................................................................................................... 15 D. Child Maltreatment in Care (MIC)................................................................................................... 20 E. Caseworker Visitation ..................................................................................................................... 21 F. Placement Stability ......................................................................................................................... 22 G. Permanency .................................................................................................................................... 24
Tables
Table 1: Monthly Foster Care Reimbursement Rates................................................................................. 11 Table 2: Pinnacle Plan Caseload and Workload Standard Commitments .................................................. 13 Table 3: Metrics Plan Caseload Baselines and Targets ............................................................................... 14 Table 4: Baselines and Targets by Age, DHS Shelter Use............................................................................ 16 Table 5: DHS Shelter Use April-Sept. 2013 and Change from Baseline ...................................................... 19 Table 6: Placement Stability Baselines, Targets and Current Performance................................................ 23 Table 7: Permanency Metrics, Baselines, Targets and Performance Reported by DHS ............................. 24
Appendix
Appendix A: Performance Metrics and Reporting Schedule ...................................................................... 27 Appendix B: Metric Plan Baselines and Targets.......................................................................................... 29 Appendix C: Net Gain/Loss Methodology for Foster Homes ...................................................................... 37
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I. Introduction
Under the Compromise and Settlement Agreement (CSA) reached by the Oklahoma Department of Human Services (DHS) and Children’s Rights in D.G. vs. Yarborough, Case No. 08CV-074, DHS and Children’s Rights identified a common desire for performance improvement in a range of areas selected to improve services and outcomes for children in the care and custody of Oklahoma’s child welfare system. Under the CSA, the Co-Neutrals are required to provide commentary twice annually on DHS’ overall progress in improving its child welfare system and on DHS’ efforts to achieve substantial and sustained progress toward targeted outcomes in specific performance areas. With respect to commentaries, the Co-Neutrals are first charged, under the CSA, with determining if DHS’ performance data is sufficient to accurately measure DHS’ progress.
On October 23, 2013, the Co-Neutrals issued a report providing initial commentary on DHS’ data sufficiency for four performance areas involving: foster homes; shelter use; caseworker visits with children in DHS custody; and maltreatment of children in DHS custody. In this report, the Co-Neutrals continue the data sufficiency assessment begun in the October 2013 report and discuss the status of the Co-Neutrals’ efforts to determine the adequacy of DHS’ data for the remaining three performance categories: caseloads, placement stability and permanency. Further, this report includes the Co-Neutrals’ assessment of performance and progress, as well as judgments in certain areas as to whether DHS has made “good faith efforts to achieve substantial and sustained progress toward each Target Outcome” as stated in the CSA.
To prepare this report, the Co-Neutrals conducted a series of verification activities to further evaluate DHS’ progress in implementing its commitments. These activities included regular meetings with DHS leadership, private agency leadership and child welfare stakeholders. The Co-Neutrals met with hundreds of DHS caseworkers and supervisors in 24 offices across 14 counties; conducted focus groups with foster parents; visited seven group homes across five counties and conducted more than a dozen announced and unannounced visits to children’s shelters in Oklahoma, Tulsa and five other counties. The Co-Neutrals visited and discussed reform efforts with the leadership of the Office of Client Advocacy, the centralized hotline, the DHS Continuous Quality Improvement (DCQI) staff, and conducted extensive reviews of individual children’s case records, children’s maltreatment investigations, shelter census logs, foster home studies and other documentation. During office visits, the Co-Neutrals interviewed staff and supervisors and talked to public and private managers about the pace, progress, and challenges of the reform work. The Co-Neutrals also reviewed and analyzed a wide range of aggregate and detail data produced by DHS, and reviewed policies, memos, and other internal information relevant to DHS’ work during the period. Throughout, the Co-Neutrals have been impressed by the commitment of DHS caseworkers and supervisors to strengthen the
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Oklahoma child welfare system so that it works better for children and families, although the DHS staff bear an enormous burden trying to do so in the face of very high caseloads and a shortage of safe, family-like placements for children.
The remainder of this report includes:
 Background (Section II); and  Seven Performance Categories: Data Sufficiency, Progress and Good Faith (Section III).
II. Background
On January 4, 2012, DHS and Children’s Rights reached an agreement in a long-standing federal class action lawsuit against the State of Oklahoma on behalf of children in the child welfare custody of DHS. That matter, D.G. vs. Yarborough, Case No. 08-CV-074, resulted in the CSA, which was approved by the United States District Court for the Northern District of Oklahoma on February 29, 2012. Under the CSA, the parties identified and the court approved Eileen Crummy, Kathleen Noonan and Kevin Ryan as “Co-Neutrals,” and charged them to evaluate and render judgment about the ongoing performance of DHS to strengthen its child welfare system to better meet the needs of vulnerable children, youth and families. The CSA gave DHS the opportunity to develop and present for the Co-Neutrals’ approval a comprehensive reform plan. DHS, with the assistance of state leaders, advocates and other stakeholders, developed the Pinnacle Plan, a five-year roadmap of significant commitments beginning in State Fiscal Year (SFY) 2013, also referred to as Year One. The Plan was approved by the Co-Neutrals on July 25, 2012. Further, the CSA charged DHS with identifying baselines and target outcomes to measure and report the state’s progress in core performance areas – henceforth referred to as the “seven performance categories” – which are:
 Maltreatment (abuse and neglect) of children in the state’s legal custody (MIC);  Development of foster homes and therapeutic treatment foster homes (TFCs);  Regular and consistent visitation of caseworkers with children in the state’s legal
custody;  Reduction in the number of children in shelters;  Placement stability, reducing the number of moves a child experiences while in the
state’s legal custody;  Child permanency, through reunification, adoption or guardianship; and  Manageable caseloads for child welfare staff.
As required by the CSA, the Co-Neutrals and DHS established the Metrics, Baselines and Targets plan (the “Metrics Plan”) on March 7, 2013. The CSA further requires the Co-Neutrals to provide
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comments and to issue a determination as to whether DHS’ data submissions provide sufficient information to accurately measure the Department’s progress. Pursuant to the CSA, the CoNeutrals may revise any determination of data sufficiency based on subsequent or ongoing data submissions as deemed appropriate.
For each of the seven performance categories, the Metrics Plan establishes: the methodology for the performance metrics and measuring progress; parameters for setting baselines; interim and final performance targets and outcomes; and the frequency by which DHS must report data and information to the Co-Neutrals and the public. The Metrics Plan identified a total of 35 metrics based on the seven performance areas. In July 2013, DHS began reporting data for four performance categories: maltreatment in care, foster homes and TFCs, shelters and caseworker-child visits. DHS began reporting data in January 2014 for the remaining three performance categories: caseloads, placement stability and permanency. Appendix A provides an update on DHS’ data reporting schedule as well as the status of four metrics (of the 35 indicated above) in the Metrics Plan for which the Co-Neutrals and DHS are continuing to work to finalize a target and/or baseline. Appendix B provides a summary chart of all the baselines and targets established in the Metrics Plan.
In this period of reform, as the Co-Neutrals draw judgments about DHS’ efforts to achieve substantial and sustained progress, much of the analysis centers on the activities of DHS leadership to improve the conditions that will make it possible for DHS caseworkers and supervisors to better care for children. The standard set forth in the CSA – “good faith efforts to achieve substantial and sustained progress” requires more than an assessment of DHS’ intentions but necessarily requires a conclusion by the Co-Neutrals that is based on an analysis of the activities undertaken and decisions made by the state to accomplish a target or goal and the impact of those decisions and activities on achieving substantial and sustained progress as defined in the CSA, the Pinnacle Plan and the Metrics Plan.
III. Seven Performance Categories: Assessment of Data Sufficiency, Progress and Good Faith Efforts
In this section of the commentary, the Co-Neutrals review the seven performance categories under the CSA, commenting on: the sufficiency of data presented to the Co-Neutrals and DHS’ efforts to achieve substantial and sustained progress toward targeted outcomes.
From the beginning of DHS’ reform efforts, the Co-Neutrals have encouraged DHS to sequence its implementation of the Pinnacle Plan with an initial, intense focus on three areas – reducing caseloads so that staff have the time and capacity to care for children; increasing the supply of foster homes so that children who have been separated from their families have safe and
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appropriate places to live; and reducing the use of shelter care, especially for young children and infants. To achieve substantial and sustained progress toward targeted outcomes in all performance categories, it is essential that DHS first achieve substantial and sustained progress in reducing caseloads and increasing its pool of safe, diverse and stable foster homes. All child welfare systems must have a solid foundation of manageable caseloads and a sufficient number of foster homes to meet the diverse needs of children and to promote their safety, permanency and well-being.
To fully assess DHS’ reform progress, it is necessary to understand and consider the interconnected impact of each of the seven performance categories on one another and not review progress of any one area in a vacuum. As such, the Co-Neutrals again want to reiterate that the cross-metric impact of having a robust pool of foster homes and manageable caseloads cannot be underestimated. These areas in particular represent the two foundational pillars for reform, upon which all other areas of the CSA performance categories, as well as reforms identified in the Pinnacle Plan, will rest.
DHS has encountered a number of formidable challenges in implementing this reform effort. As has been widely reported, DHS has experienced a surge in the number of children placed in DHS’ custody, a trend underway and noticeable at the time the Pinnacle Plan was submitted by DHS and approved.1
The Co-Neutrals highlighted in the October 2013 report that DHS placed a great deal of its resources reorganizing the reporting structure of its child welfare system, which has been a wide-scale undertaking. In fact, the system and personnel changes were so significant that some of the instability in the system now is a result of these modifications, including the promotion of a large cohort of caseworkers into supervisor positions. These types of broad range system changes that occur at the start of serious child welfare reform efforts often take time to settle and allow managers and workers at all levels to experience the positive results intended for better outcomes.
A. Foster Care and Therapeutic Foster Care Homes
The CSA requires that DHS establish targets for the number of foster homes available for children, including children in need of therapeutic care (CSA Section 2.10). To make necessary progress and develop an adequate supply of homes for children, DHS identified and committed to a set of strategies in its Pinnacle Plan. By virtue of the parties’ CSA, the Co-Neutrals are
1 A recent expert report by Casey Family Programs highlights the various factors contributing to the increase in placements.
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authorized to verify and confirm a baseline of available homes and establish performance targets for improvement.
Year Two (SFY14) Foster Home Baselines and Targets
In January 2014, at the Co-Neutrals’ request, DHS submitted a point-in-time baseline of all foster homes, including kinship, tribal, traditional and non-traditional foster homes that were open and available for children on July 1, 2013. As the Co-Neutrals reviewed that data, DHS discovered a flaw in the January submission and re-submitted the data in March 2014.
The Co-Neutrals reviewed the most recent submission and focused analysis on foster homes as described in their first commentary: non-therapeutic traditional, contracted, shelter and emergency homes. The July 1, 2013 data shows that DHS had 1,704 homes available on that date. Of those 1,704 homes, the data indicates that less than three percent of the homes had been vacant for more than six months and one percent had been vacant for more than a year. Following the Co-Neutrals’ review and analysis of DHS submissions and extensive interactions with DHS, the Co-Neutrals conclude that the data is sufficient to establish a baseline of 1,704 foster homes on July 1, 2013.
DHS acknowledged in its Pinnacle Plan that,
“Oklahoma needs new and innovative ways to recruit, retain and support resource families. Stable families provide children with experiences they need for healthy development in all aspects of life including social, physical and emotional well-being. Every child deserves to be with a family that meets his or her safety, permanency and well-being needs. Each child in out-of-home placement should be matched with a family that keeps him or her with siblings and close to home and community.”
Over the past two years, the Co-Neutrals have reviewed hundreds of pages of DHS information and data, and convened numerous meetings with DHS leadership and staff, Children’s Rights, foster parents, private agencies and other system partners to understand the scope of the need for safe foster homes and therapeutic foster homes across Oklahoma.
Consistent themes that emerged include: DHS is struggling to keep up with the growing needs of children in care; foster parents often receive minimal or inaccurate information when children are placed, hampering the foster parent’s ability to meet the child’s needs; and many worker caseloads are excessive, having a negative impact on staff’s ability to share ongoing information and respond to requests for assistance. Concerns were expressed about high worker turnover and lack of coordination between primary and secondary workers as it impacts
7

both the children and foster parents. Foster parents raised questions regarding the new publicprivate foster care system that requires communication between DHS and its public agency foster parents. Finally, foster parents shared that board rate increases are important to provide needed services for children, particularly for kinship families who are called upon to care for children at a moment’s notice without the opportunity to plan for the responsibilities of caring for a child.
The perspective universally shared in these meetings, underscored by data and information from DHS, is that the number of foster homes and therapeutic foster homes is inadequate to meet the needs of children in Oklahoma’s child welfare system. Consistently, the Co-Neutrals were informed in meetings with hundreds of caseworkers and supervisors that DHS caseworkers routinely experience great difficulty finding and accessing appropriate foster and therapeutic foster homes for children.
As noted in the Co-Neutrals’ October 2013 report, DHS had been employing a practice of asking kinship families to care for non-kinship children on an emergency basis, with no prior approval as a traditional home, and often without adequate time to prepare for the placement of a nonkinship child. DHS responded to the Co-Neutrals’ concerns about converting kinship homes to traditional homes and moved quickly to develop protocols that guide staff in assessing a kinship family’s readiness and capacity to provide care for non-kinship children. DHS developed similar protocols to planfully convert adoptive homes to traditional foster homes. DHS recently implemented these protocols and the Co-Neutrals will continue to monitor DHS’ process for transitioning kinship and adoptive homes to traditional foster homes.
Foster Home Development and Support
DHS reported early in the development of the Pinnacle Plan that public sector resources were strained due to the growing number of children in foster care. To develop and support more foster homes, DHS implemented a set of short-term strategies while it developed a longer-term reconceptualization of its business model for recruiting, assessing, supporting and certifying foster homes. In 2012 and continuing through 2013, DHS approved staff overtime, hired temporary staff, rehired retirees and contracted with vendors to complete foster care home studies. Additionally, DHS increased the availability of foster parent pre-service trainings in order to increase convenience and options for families. As articulated in its Pinnacle Plan, DHS’ chief longer-term strategy involved the privatization of non-kin foster home development and support. DHS planned to continue to manage the pool of public agency foster homes that it had already developed and to utilize those homes for children’s placements. Moving forward, DHS articulated that private agencies would develop and support new foster homes after contracts
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were awarded, creating a bifurcated foster care system that would require close coordination between DHS and private agencies.
In order to select the private agencies authorized to undertake this work with foster homes, DHS committed in its Pinnacle Plan to administer a contract bidding process through the issuance of a Request for Proposals (RFP) with the bidding process to be completed by September 30, 2012. However, DHS did not post the RFP on the state’s Central Purchasing website until October 29, 2012 with a proposal deadline of December 3, 2012, two months late. Throughout the RFP process, bidders expressed concerns to DHS leadership regarding what they believed to be a lack of bidder input concerning RFP outcomes, unrealistic performance metrics and fiscal penalties for agencies if certain performance targets were missed. One hundred twenty proposals were submitted in response to the RFP and DHS selected ten agencies to provide foster care services in 26 of its 29 child welfare districts.
On April 12, 2013, DHS leadership cancelled the ten contracts, believing its longer-term goals identified in the Pinnacle Plan would be compromised by the awards. In its notice of cancellation to the contracted agencies, DHS explained that its original RFP language was too prescriptive and worked against provider creativity, flexibility and capability. DHS further observed that the service regions of the state had been artificially defined and worked against the reality of how foster homes could be recruited and supported. DHS expressed concern that a number of high quality agencies had been eliminated in the process and that providers did not have an opportunity to provide input in the design and details of the contracts.
DHS then implemented another contracting process that allowed the Department to include input from providers, with performance outcomes negotiated with agencies and with the focus on strong public-private partnerships. In August 2013, contracts were awarded to four agencies to provide foster care services statewide, eleven months after the state’s commitment to do so in the Pinnacle Plan. DHS charged its private partners to develop 1,197 homes between August 2013–July 2014 and the Co-Neutrals accepted and adopted this performance goal as the DHS target outcome for the development of new non-relative foster homes in SFY14.
Contracting with private agencies to provide foster care services impacts all child welfare system partners, including prospective foster parents, existing foster parents, and DHS staff. Due to the scale and importance of this system change, thoughtful transition planning was critical to execute effective implementation. The Co-Neutrals have reviewed the new contracts and meeting notes between the private agencies and DHS staff; met with leadership of each of the private agencies and with foster parents in focus groups in Tulsa and Oklahoma County; and inquired about the transition process in meetings with DHS staff. The Co-Neutrals have not found sufficient evidence that an adequate transition plan was developed and implemented. As an example, the new contracts did not include start-up time for private agencies to adequately
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develop capacity to undertake the new work. Once the contracts were awarded, DHS quickly began sending new inquiries from prospective foster parents to the contracted private agencies, while the foster care agencies were just beginning to recruit, train and hire new staff and, in some cases, set up new office space. Not surprisingly, the transition period proved difficult, as evidenced by the very low number of homes (25) developed and approved by the contracted agencies from August-December 2013.
As of December 31, 2013, DHS reported developing 345 new homes, or 29 percent of the SFY14 target of 1,197 new homes. Twenty-five of these 345 new homes were developed under the new private contracts, as noted above, while DHS developed the other 320 homes in-house between July-December 2013. DHS completed the approval process for the 320 new homes as they were already well through the DHS approval process at the time the private agency contracts were finalized in August 2013.
In the October 2013 Commentary, the Co-Neutrals also established a net gain target of 615 foster homes for SFY14. The Co-Neutrals worked with DHS to establish a written methodology for calculating net gain/loss (see Appendix C). DHS’ net gain/loss analysis indicates that the Department had 1,704 open foster homes on July 1, 2013 and 1,754 open foster homes on December 31, 2013, for a net gain of 50 foster homes, eight percent of the target for SFY14.2
The Co-Neutrals have evaluated the pace, quality and progress of DHS’ efforts to achieve these target outcomes and conclude the Department’s work does not represent good faith efforts to achieve substantial and sustained progress toward these target outcomes.
Foster Care Board Rate Increase
Monthly foster care reimbursement rates cover the cost of caring for a child, including food, clothing, shelter, daily supervision, school supplies and personal incidentals. In the Pinnacle Plan, DHS committed to increase foster care board payments incrementally to more closely align with national “Hitting the MARC”3 standards published in 2007 and to increase the number of available safe placements for children. The following table represents the board rate
2Of the homes open on July 1, 2013, 306 were closed as of December 31, 2013. Of the homes open on December 31, 2013, 356 opened after July 1, 2013. 3In October 2007 Children’s Rights, The National Foster Parent Association and the University of Maryland School of Social Work released a state-by-state analysis of the cost of supporting children in foster care. The report, Hitting the MARC (Minimum Adequate Rates for Children), identified deficiencies and disparities amongst states and proposed a standard rate for each state to use in fulfilling the federal requirement to provide foster parents with payments to cover the basic needs of children in foster care, including food, shelter, clothing and school supplies.
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increases to which DHS committed as a central strategy to achieve its targets in the abovereferenced performance areas:

Table 1: Monthly Foster Care Reimbursement Rates

Age

SFY12

SFY13

SFY14

0-5

$365.00

$403.48

$441.97

6-12

$430.00

$471.78

$513.57

13+

$498.33

$538.73

$579.13

SFY15 $480.45 $555.35 $619.53

SFY16 $518.94 $597.14 $659.93

SFY17 $557.42 $638.92 $700.33

The first board rate increase was implemented in SFY13. However, the second annual increase had not been implemented as of March 31, 2014, which DHS attributes to an insufficient appropriation from the Legislature. DHS requested a supplemental budget appropriation from the Legislature that includes funding for the SFY14 increase, but the Legislature had not supported the request as of March 31, 2014. DHS has indicated it intends to implement a 6.25% resource home rate increase this spring, and then provide another 6.25% rate increase effective July 1, assuming its Pinnacle Plan appropriation request for SFY15 is supported by the Legislature. DHS believes the strategy is adequate to support its effort to achieve the target outcomes in this area.
Therapeutic Foster Care
The Co-Neutrals’ previously set a target of 150 new therapeutic foster care homes (TFC) in SFY14. The Co-Neutrals’ October 2013 commentary cited DHS data showing that by the end of SFY13, there were 586 TFC homes open as of June 30, 2013 and that almost 50 percent (282 homes) had no children placed in them.
The revised baseline data submitted by DHS in March 2014 indicates that 548 TFCs were open on July 1, 2013. Of these 548 TFCs, 102 homes were “joint approved,” meaning they were authorized to provide at least one type of regular foster care as well as therapeutic foster care. As such, 446 of the open TFCs were approved for TFC placements only. As of December 31, 2013, DHS has approved 56 new therapeutic foster homes, or 37 percent of the target.
Though DHS’ revised data for July 1, 2013 shows fewer TFCs as vacant – not fostering any children – than the data DHS supplied to the Co-Neutrals for the October 2013 commentary, vacancy rates are still high compared to regular foster care and relative to reports of demand from DHS staff. On July 1, 2013, DHS’ data indicates that of homes licensed as TFCs only (not joint approved), 28% had been vacant at least six months and 18% had been vacant for more

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than a year. As of December 31, 2013, 26% of homes approved as TFCs only had been vacant at least six months and 20% of TFC-only homes had been vacant for more than one year.4 The Co-Neutrals did not set a target for TFC net gain/loss in SFY14, but have calculated this number to bring transparency to the continuum of available placements for children. DHS reports 548 approved TFCs on July 1, 2013 and 547 approved TFCs on December 31, 2013, for a net loss of one TFC home during the first half of SFY14. The Co-Neutrals discussed the challenges around therapeutic foster care with DHS leadership, with the appropriate DHS management staff, with providers and with caseworkers and supervisors charged to find appropriate placements for children in care. In light of these discussions and the low number of therapeutic homes licensed through December 31, 2013, the Co-Neutrals are not convinced that DHS presently has in place an adequate process to meet the target outcome for additional TFCs, nor its Pinnacle Plan commitment to match children’s individual needs with available and appropriate placements and to maximize the available supply of existing homes. On March 21, 2014, DHS submitted a plan to the Co-Neutrals, which is currently under review. Based on a review of DHS’ pace and progress to achieve the target outcome for developing new TFC homes, the Co-Neutrals do not conclude that the Department’s work represents good faith efforts to achieve substantial and sustained progress toward the target outcomes.
B. Caseworker Caseloads and Supervisor Workloads
The CSA requires that DHS establish performance targets for caseworker caseloads and supervisor workloads (CSA Section 2.10). As noted in the October 2013 report, DHS’ ability to achieve progress in the most critical areas of reform hinges on reducing worker caseloads. Under the Pinnacle Plan, DHS committed to the following caseload standards:
4 Vacancy rates for jointly approved TFC homes are far lower: of the 102 jointly approved homes on July 1, 2013, four percent had been vacant for at least six months, and two percent for at least one year. These homes may be occupied by children in regular foster care or in therapeutic foster care. Of the 115 jointly approved homes on December 31, 2013, six percent had been vacant for at least six months and one percent for at least one year.
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Table 2: Pinnacle Plan Caseload and Workload Standard Commitments

Role CPS OCA Family Centered Services Permanency Planning Resource Adoption Supervisors

Standards 12 Open Investigations or Assessments 12 Open Investigations 8 Families 15 Children 22 Families 8 Families & 8 Children 1 Supervisor Dedicated to 5 Workers

Weight Per Case 0.0833 0.0833 0.125 0.0667 0.0455 0.0625
0.2 per worker

Caseworker Caseloads and Data Sufficiency
The Pinnacle Plan identified a variety of activities to reduce caseworker turnover and improve the overall working conditions for the DHS workforce so they can better care for and meet the needs of children. These commitments include adopting a graduated workload assignment for new workers so that they would not receive a full caseload until nine months after completing CORE training and committing to “incrementally increase pay for child welfare staff so that salaries are more competitive with other states.” Finally, DHS committed to implement a 1:5 supervisor to caseworker workload ratio to ensure caseworkers receive the support and guidance they need, which is most critical for new workers.
The Metrics Plan codified targets for the caseload standards and for the supervisor ratio identified in the Pinnacle Plan. One of DHS’ first steps to achieve these targets was to develop an accurate way to count caseloads. Counting a caseload for staff who have a single role and who work full-time in that role is straightforward. Counting a caseload for staff with mixed caseloads and responsibilities other than casework is more difficult. As counting caseloads is complex, the Co-Neutrals have employed an iterative process in working with DHS to develop an appropriate methodology.
At the Co-Neutrals’ request, DHS submitted detailed caseworker caseload information for December 31, 2013. The point-in-time data submission for caseloads and workloads was well organized, and DHS quickly answered the Co-Neutrals’ questions and concerns. However, the methodology currently used by DHS does not account for graduated assignments for the many new staff at DHS, does not yet account for all appropriate secondary work and does not take into account non-titled supervisors who spend a portion of their time supervising caseworkers. As such, the Co-Neutrals will continue to work with DHS on these outstanding issues and will assess data sufficiency in this area in the next report.

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The Co-Neutrals will reserve judgment until the October 2014 report on whether DHS has exhibited good faith efforts to achieve substantial and sustained progress toward its caseload target outcomes. At this juncture, relying only on the Department’s preliminary data, described in Table 3, the Co-Neutrals do not yet find evidence that workloads are improving in a substantial and sustained direction and DHS will need to demonstrate very significant movement over the next several months.
Table 3: Metrics Plan Caseload5 Baselines and Targets

Compliance Measure
Meet (100% or below standard) Close (1-20% above standard) Over (20% or more above standard)

Baseline 27%

Interim Targets for 12/31/13
45% Meet

8%

30% Close

65%

25% Over

Caseloads Reported for 12/31/13
35% Meet
9% Close
57% Over

Supervisor Workloads and Data Sufficiency

In January 2014, the Co-Neutrals approved a methodology for counting the workloads of caseload carrying supervisors (Appendix B). DHS presented the Co-Neutrals with data showing the compliance status of 260 supervisors as of December 31, 2013. In reviewing this supervisor workload data, the Co-Neutrals found that 78 supervisors carried 636 cases. As approved by the Co-Neutrals, DHS did not assign any case weight to the 40 supervisors who carried two or fewer cases.6 Thus, only 38 supervisors were counted as case-carrying in determining workload compliance. Of these 38 supervisors, 21 carried more than half of a caseload. Of those 21, six had a total workload that was twice the standard and of those six, three had a total workload four times the standard.

The Co-Neutrals identified and DHS confirmed that 16 units, comprised of 55 caseworkers, did not have a titled supervisor (a “CWS IV”) in place. Instead, the 16 units had managers serving as supervisors or had a senior caseworker fill that role. DHS did not include those staff in their

5 The caseloads referenced in the baseline, targets and performance data represent an aggregate of all caseloadcarrying worker types (permanency, CPS, family centered services, foster care/Bridge and adoption) combined, calculating each worker’s compliance with his/her own caseload standard. The Co-Neutrals have concluded that not all required worker standards in the Pinnacle Plan (e.g., graduated assignments and 50% caseload standard for caseworker mentors) are reflected in the point in time performance data for December 31, 2013 and will need to be resolved and integrated into the methodology used prospectively for counting caseloads. 6 At any point in time, supervisors can have one or two new incoming cases assigned to them in the transition
period of receiving the new case in their unit and prior to assigning the responsibility for the case to a caseworker.

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compliance calculations and the Co-Neutrals have requested that DHS propose how best to reflect the supervisory work of these individuals.
DHS’ preliminary and unverified data as of December 31, 2013 shows that 66.15% of supervisors met the workload standard, 15.38% were close and 18.46% were over the standard. DHS agreed to reach 90% of supervisors meeting the workload standard by June 30, 2014. The Co-Neutrals and DHS are still in the process of establishing a baseline for supervisor workloads.
DHS continues the process of working through all the necessary steps to ensure that its calculations are complete, such as accounting for unsupervised units of workers. As such, the Co-Neutrals will continue to work with DHS on these outstanding issues and will assess data sufficiency in this area in the next report.
C. Shelter Use
The CSA requires that DHS establish performance targets related to shelters (CSA Sec. 2.10). In the Pinnacle Plan, DHS committed that it would “ensure all children are cared for in family-like settings” and “stop its use of temporary placement in shelters for all children under 13 years of age.”
In addition, DHS made specific commitments to children of different age groups related to shelters including:
 By December 31, 2012, all children under two years of age will be placed in family-like settings;
 By June 30, 2013, all children under six years of age will be placed in family-like settings;  By June 30, 2014, all children under 13 years of age will be placed in family-like settings;
and  By June 30, 2014, children ages 13 years of age and older may be placed in a shelter,
only if a family-like setting is unavailable to meet their needs.
In the Metrics Plan, the number of “child-nights” spent in shelters was chosen as the metric to assess Oklahoma’s progress in eliminating shelter use. One “child-night” is defined as “one child in a shelter at midnight.” The total number of child-nights is calculated by summing the number of children in shelters at midnight for each night of the reporting period.
The Metrics Plan identified the baselines and targets for each of the above metrics except for children age 13 and older. The Co-Neutrals and DHS finalized a target for shelter placements and nights for children age 13 and older using a dual variable metric: the first variable is based on a percentage reduction in the total number of child-nights and the second variable is based on the rule established in the Pinnacle Plan Section 1.17, which states that,
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“By June 30, 2014, children ages 13 years of age and older may be placed in a shelter, only if a family-like setting is unavailable to meet their needs. Children shall not be placed in a shelter more than one time within a 12-month period and for no more than 30 days in any 12-month period. Exceptions must be rare and must be approved by the deputy director for the respective region, documented in the child’s case file, reported to the division director no later than the following business day, and reported to the OKDHS Director and the CoNeutrals monthly.”

This metric assumes that there will continue to be a need to place older children in congregate settings but the target ultimately focuses on reducing child-nights in a shelter for children ages 13 and older by more than 50% and ensuring Pinnacle Plan Section 1.17 is followed to limit the number of times and length of stay a child experiences in a shelter, when a family-like or other setting that best meets a child’s needs is not available.
Table 4: Baselines and Targets by Age, DHS Shelter Use

Age 0 to 1 2 to 5 6 to 12 13 & Older

Baseline
2,923 childnights 8,853 childnights 20,147 childnights 20,635 childnights

Interim Target and Date None set

Final Target 0 nights

Final Target Date 12/31/2012

None set

0 nights

6/30/2013

50% reduction by 12/31/2013 1) 13,200 childnights 2) 80% of children placed will meet Pinnacle Plan 1.17 by 6/30/2015

0 nights

6/30/2014

1) 8,850 childnights 2)90% of children placed meet Pinnacle Plan 1.17

6/30/2016

Shelter Utilization and Data Sufficiency
In the October 2013 commentary, the Co-Neutrals reported that after reviewing a number of data sources – the KIDS database, available shelter logs maintained by individual shelters, and DHS’ monthly shelter report – a small discrepancy was detected in the number of children experiencing shelter placement between the shelter data reported to the Co-Neutrals and the public, and the data sources noted above. DHS explained that the discrepancies existed because they needed more time to ensure all relevant data was entered into the KIDS system and verified. The Co-Neutrals and DHS subsequently agreed to additional “data lag time” as discussed in Appendix A. The Co-Neutrals thereafter conducted a comparison review of DHS
16

shelter data reports provided to the Co-Neutrals and shelter entry and exit logs maintained in the KIDS system and found that the data is consistent. Given this, the Co-Neutrals find that the shelter data produced by OKDHS is sufficient.
Substantial and Sustained Progress and Good Faith Efforts
The first shelter deadline per the Metrics Plan established that no children under the age of 2 would be placed in a shelter after December 31, 2012.7 At the time of this first shelter deadline for children under 2, an average of 35 children that age entered shelters each of the prior three months of October-December 2012.
For the first few months into 2013, DHS worked hard to meet this commitment. However, given the undersupply of foster homes, even for this small number of children, DHS was not able to sustain its progress and meet this target. The Co-Neutrals heard regularly through focus groups with hundreds of staff around the state about the lack of available placements for all children, a problem confounded by the delay in the RFP process. Moreover, the Co-Neutrals’ own review of records in 2013 found that while a smaller number of children under the age of 2 were being placed in shelters, DHS was continuing its practice of removing children and placing them in some type of temporary arrangement before they could be moved to a permanent kinship or foster care home.
As of April 2013, DHS reported and the monthly data showed that OKDHS could not sustain its reduction in child-nights in the shelters. Over the following months, the number of children under the age of 2 in shelters increased as did the total shelter nights experienced (from a low of seven child-nights in March 2013 up to 117 child-nights in September 2013).
DHS leadership has instituted a pre-authorization process whereby caseworkers must work with their supervisors and local and regional managers to explore, exhaust and document all options available to place a child in a foster or kinship home. This process started on December 31, 2012 for children under 2, and started on March 1, 2013 for any child under 6. This information is documented on an authorization form that must be approved by the child welfare director before DHS places a child under the age of 2 in a shelter. DHS Regional Directors must approve the placement of children ages 2-5 years old in shelters. This additional process is meant to ensure family-like placement options are considered first before a child is sent to a shelter. However, given that DHS has not produced nearly as many new foster homes
7 A Note about Shelter Exceptions: The Pinnacle Plan allows DHS to place young children in shelters if they are part of a large sibling group. DHS had also been placing children in shelters as an exception if they had “complex medical needs.” DHS informed the Co-Neutrals that it will no longer consider the latter an exception to shelter placement.
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as planned, caseworkers are often still in the position of having to place children in a shelter because of a lack of available foster homes.
The Co-Neutrals reviewed 88 shelter pre-authorization forms submitted for children under the age of 6 between October 2013 and February 2014. The 88 forms covered many more children than this, since many had two or more siblings. Of the 88 pre-authorizations submitted, 58 were for new placements and 30 were for placement disruptions. There were many cases in which reasonable efforts were made to consider kinship placements before removal. However, in 21 of the 88 cases reviewed, including 7 cases that involved either a joint response with the police or an independent police removal, kinship resources were either not considered or were identified but not pursued to avoid shelter placement. The Co-Neutrals noticed that kin were automatically ruled out in some of these cases if there was anyone alleged to be undocumented in the house, if one of the parents had child welfare involvement as a child or if the relative had some income limitations. In these cases, reasonable efforts to place with kin seemed to stop. In 15 of the 30 cases that involved a placement disruption, the foster or kinship parent’s inability to handle a behavior problem and/or lack of availability of a TFC was noted in the shelter form.
DHS conducted its own qualitative review on shelter usage for children under 6 between October and December 2013 and generated a similar set of findings, including the need for better planning related to placement disruptions and the importance of looking into all available family-setting options before a decision is made to use a shelter. For each of these recommendations, a key conclusion is the need for DHS to think more proactively about placement resources before a child is removed or once removal occurs.
The second shelter deadline per the Metrics Plan established that no children under the age of 6 would be placed in a shelter after June 30, 2013. DHS reported and the data showed the same pattern for children in this age group as experienced with younger children: the first few months after the deadline saw a steady decline in the number of children and shelter nights through March 2013 before an upward trend through September 2013 (from a low of 493 childnights in March 2013 to 777 child-nights in September).
Still, for both age groups, DHS has demonstrated a decline in the number of child nights from the baseline established in the Metrics Plan as shown in Table 5.
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Table 5: DHS Shelter Use April-Sept. 2013 and Change from Baseline

DHS Shelter Use by Age 0 to 1 2 to 5 6 to 12 13 & Older TOTAL

Baseline (Jan 2012-June2013) 2,923 8,853 20,147 20,635 52,558

Performance (Apr 2013-Sept 2013) 784 4,679 22,337 24,486 52,286

Change (n)
-2,139 -4,174 2,190 3,851 -272

Change (%)
-73.0% -47.0% 11.0% 19.0% -0.5%

Although DHS has not achieved the targets set in the Pinnacle Plan of no child-nights for either children under the age of 2, or for children under the age of 6, the use of shelter placements for young children has declined substantially to date under this reform effort.
DHS re-committed to the Co-Neutrals that there would be no young children under the age of 2 in shelters by March 31, 2014, and no young children under the age of 6 in shelters by June 30, 2014. DHS’ preliminary data suggests that shelter placement for children under the age of 2 is very low (6 children in March 2014 – 4 of whom met the exception for placement with a sibling group of 4 or more children). DHS believes that this new effort can be sustained because they are recruiting new resource homes with a priority of using them first to place young children.
The deadline for eliminating shelter placements of children aged 6 through 12 is June 30, 2014. In an effort to track and work towards a phased decrease in the number of children ages 6 through 12 entering shelters, DHS and the Co-Neutrals set an interim target for this group in the Metrics Plan. This interim target was set for December 31, 2013 with DHS reducing by 50% the total number of child-nights experienced in the six-month baseline period from JanuaryJune 2013. The established baseline is 20,147 shelter nights. Unfortunately, DHS did not reach a 50% reduction in the interim target of 10,073 shelter nights but, in fact, saw a marked increase for this age group to 23,384 shelter nights during the period of July-December 2013.
Further, DHS does not appear to be on track to meet the final target and deadline set for June 30, 2014, as the number of children (ages 6 to 12) being placed in shelters is still rising. There is a similar upward trend for children 13 years of age and older.
The Co-Neutrals remain very concerned about the growing number of shelter placements for children ages 6 and older, especially because the use of shelters seems based not only on a lack of resource homes, but – as noted above – on a practice norm of only looking for resources after a decision for removal has been made. This practice will have to evolve in order for DHS to fulfill its Pinnacle Plan commitment of “matching” children to appropriate placements from the time of a first placement.

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Despite concerns regarding shelter placements of older children, the Co-Neutrals find that DHS has made good faith efforts to achieve substantial progress toward the target outcome of eliminating shelter placement for children under the age of 2 years. This finding is based on the Co-Neutrals’ review of DHS activities and performance data as well as interviews with staff in offices across Oklahoma and on-site interviews and observations at the shelters. The CoNeutrals cannot yet conclude if this progress has been “sustained” and will continue to monitor this issue and include an update in the next report. The Co-Neutrals will reserve judgment until their next report on whether DHS has made good faith efforts to achieve substantial and sustained progress toward the target outcome of eliminating shelter placements for children between 2 and 5 years of age, and will also continue to monitor shelter utilization for older children.
D. Child Maltreatment in Care (MIC)
The CSA requires that DHS establish performance targets to reduce abuse and neglect of children in DHS’ custody (CSA Section 2.10). As the Co-Neutrals previously reported, DHS has initiated a number of meaningful reforms to align its investigative response to alleged abuse and neglect for children in DHS’ custody, regardless of placement type. To assess the safety of children in DHS’ custody, Oklahoma is tracking and reporting the number of children abused or neglected in two categories based on the type of perpetrator. The first are alternative caregivers: a foster parent, therapeutic foster parent, kinship parent, or institutional staff person (all referred to as resource caregivers). The second is abuse or neglect by a parent while the child is in DHS’ custody.
With regard to the first, DHS and the Co-Neutrals agreed DHS would improve safety for children in care using two indicators. First, DHS now tracks and reports publicly the number of children abused or neglected by an alternative caregiver, on a monthly basis. Second, DHS and the CoNeutrals use the federal metric “Absence of Child Abuse and/or Neglect in Foster Care,” which includes the percent of all children in foster care during a 12-month period who were not victims of substantiated abuse or maltreatment by a foster parent or facility staff. The 12month period coincides with the federal fiscal year, October 1 to September 30.
MIC and Data Sufficiency
DHS, along with all other state child welfare systems, annually submits (in January) a Child Maltreatment Report to the federal government, which is aggregated with other states’ data in the National Child Abuse and Neglect Data System (NCANDS). In the Pinnacle Plan, DHS committed to include in its Federal Fiscal Year 2013 (FFY13) report to the federal government maltreatment of all children in custody substantiated by the DHS Office of Client Advocacy (OCA). The Co-Neutrals are in the process of verifying that commitment and will disclose their
20

findings in the next report.
During the Co-Neutrals’ verification, some questions about the data emerged, which led DHS to conclude that it had over-reported to the Co-Neutrals and the public instances of child abuse and neglect in institutional settings, including some children who were not in DHS’ legal custody at the time they suffered maltreatment. That discovery raised doubts for the Co-Neutrals about the integrity of the historical data previously supplied by DHS in 2013, which the Co-Neutrals relied upon to establish both the performance baselines and the target outcomes in this performance area. DHS and the Co-Neutrals concluded that the historical data submitted by DHS and used by the Co-Neutrals to establish the baseline had not been subject to any internal verification by DHS over the years, and that the detailed information supporting the baseline was not available for review. As a result, the Co-Neutrals are formally withdrawing the previously published baselines and targets in this performance category, and will be working with DHS over the next several months to establish new baselines and targets based on validated data. The Co-Neutrals will publish these new standards in the next report.
E. Caseworker Visitation
The CSA requires that DHS establish performance targets for two measures on caseworker visits (CSA Section 2.10): the frequency of caseworker visits, which is defined as the number of required monthly visits completed with children in care; and, continuity of visits by the same caseworker. At this time, DHS is only required to report on the frequency of caseworker visits. For frequency of visits, the Metrics Plan establishes that DHS will report the following:
“3.1 The percentage of the total minimum number of required monthly face-toface contacts that took place during the reporting period between caseworkers and children in foster care for at least 1 calendar month during the reporting period.”
The second indicator is the same, but includes only visits made by primary caseworkers:
“3.2 The percentage of the total minimum number of required monthly face-toface contacts that took place during the reporting period between primary caseworkers and children in foster care for at least 1 calendar month during the reporting period.”
DHS and the Co-Neutrals agreed that DHS would not begin recording data on continuity of visits until January 2014, with reporting to begin in July 2014.
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As reflected in the Metrics Plan, DHS and the Co-Neutrals agreed that it would not be reasonable to establish a baseline and measurable targets for continuity of visits while the state was phasing out the use of secondary workers whose responsibilities include conducting the required monthly child visits. DHS committed to end the use of secondary workers across the state by January 2014; however, the Co-Neutrals approved DHS’ request to postpone this target date until July 1, 2014. This delay may affect the Co-Neutrals’ ability to provide a final assessment of DHS’ efforts to achieve progress in providing children in care continuity of visits with the same primary caseworker.
Caseworker Visits and Data Sufficiency
In the October 2013 Commentary, the Co-Neutrals deemed DHS’ data to be sufficient to assess DHS’ progress for the frequency of caseworker visits. At the Co-Neutrals’ request, DHS submitted caseworker visitation data for FFY13 in March 2014. The Co-Neutrals are currently engaged in a set of verification activities on this data and will reserve judgment on DHS’ efforts to achieve substantial and sustained progress until the next report.
F. Placement Stability
The CSA requires that DHS establish performance targets to provide stability of placements for children in DHS’ custody (CSA Sec. 2.10) as DHS and Children’s Rights agree that children should have as few placement changes as possible during their time in foster care. Placement instability causes trauma for children and is associated with increased behavioral challenges and poor educational and health outcomes.
The Co-Neutrals and DHS agreed to use the federal Adoption and Foster Care Reporting System (AFCARS) files and definitions for placement moves in calculating placement stability metrics. DHS presented the Co-Neutrals with its FFY13 AFCARS files, which draw data from DHS’ KIDS system and contain information on children who spent time in foster care from October 2012 through September 2013.
To verify the accuracy of children’s placement moves in the AFCARS files, the Co-Neutrals reviewed the records in the KIDS child welfare database for 78 children who entered DHS foster care in the month of October 2012 and who experienced two placements during FFY13 according to the AFCARS files. The Co-Neutrals are currently engaged in a set of verification activities on this data and will reserve judgment on DHS’ efforts to achieve substantial and sustained progress until the next report. The Co-Neutrals’ ongoing review seeks to determine if placement moves were accurately recorded in the KIDS fields that are used to count placement moves in AFCARS. Children with two placement moves were selected for the review because
22

one unrecorded placement would change their status from compliant to noncompliant with metric 4.1, which measures, in part:

4.1: Percent of children in the legal custody of OKDHS that experience two or fewer placement settings:
a. Of all children served in foster care during the year who were in care for at least 8 days but less than 12 months, the percentage that had two or fewer placement settings. (4.1 (b) and (c) are outlined below in Table 5.)
In December 2013, DHS and the Co-Neutrals finalized a baseline and target for Metric 4.2 in the Metrics Plan, which measures:
4.2: Of those children in foster care for more than 12 months, the percent of children who experienced two or fewer placements settings after their first 12 months in care.

The following table includes the full listing of the baselines, targets and current performance reported for 4.1 and 4.2:8

Table 6: Placement Stability Baselines, Targets and Current Performance

Metric

Baseline

Target

Oct 2011-Sept 2012 June 30, 2016

4.1(a): % of children in custody with 2 or fewer

70.0%

88.0%

placements: in care less than 12 months

4.1(b): percent of children in custody with 2 or fewer 50.0%

68.0%

placements who are in care more than 12 months

but less than 24 months

4.1(c): percent of children in custody with 2 or fewer 23.0%

42.0%

placements who are in care at least 24 months

4.2: percent of children in care more than 12

74.0%

88.0%

months, with 2 or fewer placements after their 12 (Apr.‘12–Mar.‘13)

months in care

Performance Oct 2012-Sept 2013 72.9% 50.8%
24.8% 74.6%

8 The Metrics Plan includes a third metric for placement stability (4.3) that would measure placement changes that represent moves toward permanency. DHS and the Co-Neutrals worked to develop DHS’ capacity to produce this measure. Due to the range of placement types in KIDS and the complexity of defining a “move to permanency” with existing data, developing the metric required significant time from DHS analytic staff. To allow DHS to focus on the three priority areas identified by the Co-Neutrals (caseloads, foster homes and shelters), the Co-Neutrals suspended reporting requirements on metric 4.3 and may revisit working with DHS to establish this measure at a later date.
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Placement Stability and Data Sufficiency
As of the time of the preparation of this report, the Co-Neutrals were still in the process of assessing the sufficiency of DHS’ placement stability data. The Co-Neutrals will continue this review in conjunction with DHS and provide further comment on the data for this performance area in the October 2014 report.
G. Permanency
The CSA requires that DHS establish performance targets for achieving permanency for children and to do so in a timely manner (CSA Section 2.10). DHS and the Co-Neutrals agreed that permanency for children will be defined as reunification, adoption or guardianship and established a suite of metrics to assess DHS’ progress in moving children to permanency. These metrics are listed in the following table.

Table 7: Permanency Metrics, Baselines, Targets and Performance Reported by DHS

Metric
6.1: Of children who are legally free not living in an adoptive placement as of Jan. 10, 20149, the percent to achieve permanency. 6.2(a): children who entered care 12-18 months prior to end of report period, the % to reach permanency within 1 year of removal – by type of permanency
6.2(b): children who entered 12th month in care 12-18 months prior to end of report period - % to reach permanency within 2 years of removal, by type of permanency
6.2(c): children who entered 24th month in care 12-18 months prior to end of report period - % to reach permanency within 3 years of removal, by type of permanency

Baseline
Jan 10, 2014 Cohort 292 children

Target June 30, 2016 TBD

Data due: 9/30/13

Total – 55.0%

Total – 35.0% Reunification - 31.4% Adoption - 1.6% Guardianship – 2.0%
Data due: 9/30/13

Total – 75.0%

Total - 43.9% Reunification - 22.3% Adoption - 18.9% Guardianship - 2.7%
48.5%

Total – 70.0%

a) Reunification - 13.0% b) Adoption - 32.7% c) Guardianship - 2.9%

Performance TBD Total – 31.8%
Total – 41.0%
Total – 46.9%

9 The Metrics Plan established the point-in-time date of March 7, 2013 as when the cohort for this metric would be established. DHS required additional time to work through how best to define and capture this cohort given some complexities with DHS’ data system and ongoing work to ensure accuracy of the data maintained in the KIDS system.

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Metric

Baseline

6.2(d): children who entered 36th month in care 12-18 months prior to end of report period - % to reach permanency within 4 years of removal, by type of permanency
6.3: of children discharged in 12 month period prior to report period, % who re-enter care during with 12 months after discharge 6.4: of legally free foster children who turn 16 during 24-36 month prior to report period, (a)% to exit to permanency by age 18, (b) % to stay in care after age 18 and (c) % to exit without permanency by 18
Baseline Period: 7/1/09 to 6/30/10
6.5: of children who become legally free for adoption in the 12 months prior to the year of reporting period, % discharged to finalized adoption in less than 12 months from date of becoming legally free 6.6: % of adoptions to not disrupt over a 12 month period, of all trial adopt placements during previous 12 months 6.7: % of children with finalized adoption over a 24 month period whose adoption did not dissolve with 24 months of finalization

46.6%
a) Reunification - 8.8% b) Adoption - 37.3% c) Guardianship - .4% Total-10.3%
30.0%
a) Exit to perm = 30.43% b) Stayed in care = 2.72% c) Exit w/o perm = 66.85% 54.3% (AFCARS for FFY12)
97.1%
99.0%

Target June 30, 2016 Total – 55.0%
8.2%
50.0% by 12/31/14 75% by 12/31/15 80% by 6/30/16 75.0% 6/30/16
97.3% 99.0%

Performance Total – 48.5%
10.0% 31.4%
60.9% 96.7% 99.5%

DHS made progress toward reaching data sufficiency for several permanency metrics, particularly metrics 6.1 and 6.7.

Metric 6.1 Achieving Permanency for Legally Free Children

The Metrics Plan requires DHS to identify a cohort of children in foster care who were legally free for adoption but for whom no adoptive placement had been identified. The cohort was to be identified as of March 7, 2013, the day the Metrics Plan was approved. At that time, KIDS did not have a reliable indicator for legally free children in this status. DHS field and analytic staff worked to improve data quality in this area throughout the fall of 2013 and the Co-Neutrals directed DHS to draw the cohort as of January 10, 2014. DHS then submitted a cohort of 292 legally free children with no identified adoptive placement. The Co-Neutrals deem the data submitted sufficient to calculate metric 6.1 and approve the cohort of 292 children.

Metric 6.7 Adoption Dissolution

DHS submitted calculations and detailed data for this metric in January 2014. After analyzing this information, the Co-Neutrals clarified the calculation methodology for the metric. DHS

25

resubmitted their calculations and supporting data. After analyzing this information, the CoNeutrals deem the data submitted sufficient to calculate metric 6.7. As of the time of the preparation of this report, the Co-Neutrals continued to work with DHS on data sufficiency for the permanency metrics beyond 6.1 and 6.7, for which the Co-Neutrals have determined data sufficiency, and will render a judgment on the remaining permanency metrics in the next commentary.
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Appendix A: Performance Metrics and Reporting Schedule
At the time the Metrics Plan was finalized in March 2013, a number of baselines and targets remained outstanding. DHS and the Co-Neutrals have since worked through an iterative process to finalize many more of the unresolved baselines and targets as DHS continues to refine and ensure accuracy and consistency in its data collection and reporting.
Only four out of 35 metrics included in the Metrics Plan still require a target and/or baseline: supervisor workloads require a baseline (data submitted in February 2014 is currently under review); continuity of caseworker visits for six consecutive months requires a baseline and target, which are due to be set by December 31, 2014 (Metric 3.3(b)); MIC requires a new baseline and target (see Section III, D of this April 2014 Commentary); and a target will be set for permanency for children legally free as of January 10, 2014 (Metric 6.1).
Appendix B is a summary table of the baselines and targets embedded in the Metrics Plan.
DHS requested additional time to report data for the four performance areas it reports every month. The Co-Neutrals have reinforced with DHS that taking the necessary time to ensure accuracy in DHS’ data reporting is essential to allow the Co-Neutrals, the public, and most importantly, DHS to assess the progress of its work and reform efforts.
DHS requested additional time to account for the period between when workers are scheduled to input information into the data systems and when the central data team extracts the information and prepares it for reporting to the Co-Neutrals and the public. With respect to foster homes, TFCs, shelter utilization and caseworker child visits, the Co-Neutrals considered it a reasonable request to allow DHS 60 days in its effort to develop data accuracy and provide DHS staff more time to enter, verify and prepare the data for public reporting and DHS’ own analysis.
For maltreatment of children in care (MIC), DHS originally requested in April 2013 to have 90 days to report final determinations of substantiated abuse/neglect of children in DHS custody on a monthly basis. DHS subsequently requested an additional time lag of 180 days, which the Co-Neutrals declined.
Data Reporting Frequency
DHS will continue to produce data reports every month during the life of the CSA. Under the Metrics Plan, DHS will include data on maltreatment in care, foster homes and TFCs, shelters and caseworker-child visits in every monthly report. Every three months (quarterly: January, April, July and October), DHS will include caseload data in the monthly report and, semi-
27

annually (January and July), DHS will include data for placement stability and permanency in its monthly reports.
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Appendix B: Metric Plan Baselines and Targets
Oklahoma Department of Human Services Compromise and Settlement Agreement in D.G. v. Henry

1. MALTREATMENT IN CARE (MIC) Metric

Reporting Frequency

Baseline

Target

1.A: Of all children in foster care during the reporting period, what Semi-Annually, in the

percent were not victims of substantiated or indicated maltreatment January and July monthly

by a foster parent or facility staff member in a 12 month period.

reports

The Co-neutrals and DHS agreed A new target will be

to withdraw the baseline set in established based upon the

the Metrics Plan and re-

new FFY2013 baseline in

establish a new baseline based process.

upon FFY 2013.

1.A (2): Number of children in the legal custody of OKDHS, found to have been maltreated by a resource caregiver over the 12 month period. 1.B: Of all children in legal custody of OKDHS during the reporting period, what number and percent were not victims of substantiated or indicated maltreatment by a parent and what number were victims.

Monthly
Semi-Annually, in the January and July monthly reports

N/A
98.56% (Oct 2012 – Sept 2013)

N/A 99.00%

1.B (2): Number of children in the legal custody of OKDHS, found to Monthly

N/A

N/A

have been maltreated by a parent over the 12 month period.

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2. FOSTER AND THERAPEUTIC FOSTER CARE (TFC) HOMES Metric 2.A: Number of new foster homes (non-therapeutic, non-kinship) approved for the reporting period.** Net gain/loss in foster homes (non-therapeutic, non-kinship) for the reporting period***
2.B: New TFCs Number of new therapeutic foster homes (TFC) reported by OKDHS as licensed in FFY 2011

Reporting Frequency Monthly
Semi-Annually, in the January and July monthly reports Monthly

Baseline – July 1, 2013 1704 N/A
548 (under review)

Target SFY 14 1197 615
150

 By May 30 of each year, DHS shall conduct annual trend analysis to set annual targets for foster and TFC homes needed to meet the needs children in and entering care. ** DHS and the Co-Neutrals established criteria for counting new non-kin foster and TFC homes toward the annual targets set under 2.A and 2.B. *** DHS and the Co-Neutrals established a methodology for counting net gains/losses of non-kin foster and TFC homes.
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3. CASEWORKER VISITS

Metric

Reporting Frequency

3.1: The percentage of the total minimum number of required

Monthly

monthly face-to-face contacts that took place during the reporting

period between caseworkers and children in foster care for at least 1

calendar month during the reporting period.

Baseline 95.5%
(July 2011-June 2012)

Target 95%

3.2: The percentage of the total minimum number of required

Monthly

monthly face-to-face contacts that took place during the reporting

period between primary caseworkers and children in foster care for

at least 1 calendar month during the reporting period.

3.3(a): The percentage of children in care for at least three

Semi-Annually, in the

consecutive months during the reporting period who were visited by January and July monthly

the same primary caseworker in each of the most recent three

reports

months, or for those children discharged from OKDHS legal custody

during the reporting period, the three months prior to discharge.

Phase One: for period Jan – Dec 2012

51.2%

Final: 90%

Interim – Last reported month

(July 2011-June 2012)

of:

FFY 2013 - 65%

FFY 2014 - 70%

FFY 2015 - 80%

FFY 2016 – 90%

Of 9,583 children in care more 75%

than 3 months, 5070 had 3

consecutive monthly visits by

their primary worker = 53%

(January - June 2013)

3.3(b): Percentage of children in care for at least six consecutive months during the reporting period who were visited by the same primary caseworker in each of the most recent six months, or for those children discharged from OKDHS legal custody during the reporting period, the six months prior to discharge.

Semi-Annually, in the January and July monthly reports

Baseline data due by

Co-Neutrals will set target by

September 30, 2014 for period 12/31/14 75%

1/1/13 – 6/30/14

Phase Two: for period Jan 2015 until the end of the Compromise and Settlement Agreement (CSA)

31

4. PLACEMENT STABILITY Metric
4.1 (a): Percent of children in legal custody of OKDHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 8 days but less than 12 months, the percentage that had two or fewer placement settings.

Report

Baseline

Frequency

Semi-Annually, in the

70%

January and July monthly

report -same for all

(Oct 2011 – Sept 2012)

placement stability metrics

4.1(b): Percent of children in legal custody of OKDHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 12 months but less than 24 months, the percentage that had two or fewer placements.

Same

50% (Oct 2011 – Sept 2012)

4.1(c): Percent of children in legal custody of OKDHS that experience Same two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 24 months, the percentage that had two or fewer placement settings.

23% (Oct 2011 – Sept 2012)

4.2: Of those children served in foster care for more than 12 months, the percent of children who experienced two or fewer placement settings after their first 12 months in care.

Same

74% (Apr 2012 – Mar 2013)

4.3: Of all moves from one placement to another in the reporting N/A

N/A

period, the percent in which the new placement constitutes

progression toward permanency. (Note: the Co-Neutrals have

suspended this metric.)

Target – by June 30, 2016 88%
68%
42% 88% N/A

32

5. SHELTER USE

Metric

Report

Frequency

5.1: The number of child-nights during the past six months involving Monthly

children under age 2 years.

Analysis of usage every 6

months – same for all

shelter metrics

5.2: The number of child-nights during the past six months involving Same

children age 2 years to 5 years.

5.3: The number of child-nights during the past six months involving Same

children age 6 years to 12 years.

Baseline (January-June 2012 2,923 child-nights
8,853 child-nights 20,147 child-nights

5.4: The number of child-nights during the past six months involving Same children age children 13 years or older.

20,635 child-nights

Target
0 by 12/31/12
0 by 6/30/13
0 by 6/30/14
Interim Target of 10,000 by six-month period ending December 31, 2013 Interim Target by 6/30/15 # child-nights: 13,200 80% of children 13+ in shelters will meet Pinnacle Plan (PP) Point 1.17 rules
Final Target by 6/30/16 # child-nights: 8,850 90% of children 13+ in shelters will meet PP Point 1.17 rules

 Pinnacle Plan Point 1.17: “By June 30, 2014, children ages 13 years of age and older may be placed in a shelter, only if a family-like setting is unavailable to meet their needs. Children shall not be placed in a shelter more than one time within a 12-month period and for no more than 30 days in any 12-month period. Exceptions must be rare and must be approved by the deputy director for the respective region, documented in the child’s case file, reported to the division director no later than the following business day, and reported to the OKDHS Director and the Co-Neutrals monthly.
33

6. PERMANENCY Metric
6.1: Of all children who were legally free but not living in an adoptive placement as of January 10, 2014, the number of children who have achieved permanency.
6.2(a): The number and percent of children who entered foster care 12-18 months prior to the end of the reporting period who reach permanency within one year of removal, by type of permanency.
6.2(b): The number and percent of children who entered their 12th month in foster care between 12-18 months prior to the end of the reporting period who reach permanency within two years of removal, by type of permanency.
6.2(c): The number and percent of children who entered their 24th month in foster care between 12-18 months prior to end of reporting period who reach permanency within three years of removal, by type of permanency.
6.2(d): The number and percent of children who entered their 36th month in foster care between 12-18 months, prior to the end of the reporting period who reach permanency within four years of removal.

Report Frequency Semi-Annually, in the January and July monthly reports - same for all permanency metrics Same
Same
Same
Same

Baseline
Jan 10, 2014 Cohort
292 children
Total = 35%
Reunification = 31.4% Adoption= 1.6% Guardianship = 2% Total = 43.9%
Reunification = 22.3% Adoption = 18.9% Guardianship = 2.7% Data due: 9/30/13
Total = 48.5% Reunification = 13.0% Adoption = 32.7% Guardianship = 2.9% Total = 46.6% Reunification = 8.8% Adoption = 37.3% Guardianship = .4%

6.3: Of all children discharged from foster care in the 12 month period prior to the reporting period, the percentage of children who re-enter foster care during the 12 months following discharge.

Same

10.3%
Discharged year ending 9/30/11 re-entered as of 9/30/12

Target TBD Total = 55% Total = 75% Total = 70%
Total = 55% 8.2%

34

6. PERMANENCY Metric
6.4: Among legally free foster youth who turned 16 in the period 24 to 36 months prior to the report date, the percent that exited to permanency by age 18; stayed in foster care after age 18, and exited without permanency by age 18.

Report Frequency Same

6.5: Of all children who became legally free for adoption in the 12 month period prior to the year of the reporting period, the percentage who were discharged from foster care to a finalized adoption in less than 12 months from the date of becoming legally free. 6.6: The percent of adoptions that did not disrupt over a 12 month period, of all trial adoptive placements during the previous 12 month period. 6.7: The percent of children whose adoption was finalized over a 24 month period who did not experience dissolution within 24 months of finalization.

Same
Same Same

Baseline 30.43% (July 2009-June 2010)
54.3% (Oct 2011-Sept 2012)
97.1% (Apr 2008-Mar 2010) 99%

Target 50% by 12/31/14 75% by 12/31/15 80% by 6/30/16 75% by June 30, 2016
97.3% 99%

35

7. CASELOADS Metric
Supervisors
Child Protective Services (CPS) OCA (Office of Client Advocacy) Family Centered Services (FCS) Permanency Foster Care Adoption

Report Frequency Quarterly, every Jan, April, July and Oct – same for all caseloads

Standard 1:5 ratio

Baseline
Data submitted – baseline data under review

Same Same

12 open investigations or assessments Same Baseline for All Case Carrying Workers:
12 open investigations

Same
Same Same Same

8 families
15 children 22 families 8 families & 8 children

27% - meet standard 8% - 1-20% above standard 65% - 21%+ above standard

Target 90% meet standard by June 30, 2014
Same Interim Target for All Case Carrying Workers – by Dec 31, 2013: 45% - meet standard 30% - 1-20% above standard 25% - 21%+ above standard Final Target: 90% of all workers meet their standard by June 30, 2014

36

Appendix C: Net Gain/Loss Methodology for Foster Homes
Definitions:
1. Resource Family – A unique family unit at a single location as identified by the lowest common resource ID in KIDS.
2. Lowest Common Resource ID – The lowest ID in the resource table found by cross checking every possible combination of the social security numbers of both heads of households in one resource with both heads of households in every other resource. Any match designates that the resources are the same family.
a. Rarely, a social security number may be missing or have a data entry error. The data will be reviewed to identify matches by combinations of name, phone number, and addresses that may indicate a duplicate entry.
Note: The lowest common resource ID may not match any of the active resource IDs. Many resource families, for example, received their first resource ID as day care homes.
3. Countable Resource Family – A non-therapeutic, non-kin foster home that has at least one resource type or home contained in one of the agreed upon “countable categories” as defined in the measurement plan. The countable categories are state and contracted foster homes, emergency foster care homes and shelter host homes.10 Foster homes developed under the new private contracts, noted as “supported homes,” are now within the countable categories. A resource family only counts once even if they have approvals in multiple “countable categories”.
4. Open Resource Family – Any resource family that has at least one resource type contained in one of the agreed upon “countable categories” as defined in the measurement plan. a. The date on which a resource family is considered open depends on the type of home: i. When approved by OKDHS staff, resource families are open as of the family assessment “supervisor approval” date in KIDS. ii. When approved by contracted agencies, resource families are open as of the “open date” in KIDS as a DHS supervisor does not approve these homes.
10 Per the Approved Baselines, Metrics and Targets plan, the Co-Neutrals will determine if emergency foster care and shelter host homes will be counted in future baselines and targets.
37

Note: A resource family is considered “open” even if a resource type is closed during the period under review as long as at least one resource type remains open in a countable category.
5. Closed Resource Family – Any resource family in which all countable resource types have a close date during the period under review. The resource family is considered closed even if the resource family is licensed in non-countable categories.
Method of counting net change in resource families:
1. Baseline count of resource families: On the first day of the period under review, the number of resource families with at least one open resource type in a “countable category”.
2. Current count of resource families: On the last day of the period under review, the number of resource families with at least one open resource type in a “countable category”.
3. The net change is the baseline count of resource families subtracted from the current count of resource families.
4. In reporting the net change in resource families, the Department will provide the baseline count, the current count, the number of closures, and the number of openings.
a. Closures are defined as resource families included in the baseline count but not included in the current count. Note: the number of closures in this section is not the number of times a resource family opens and closes during the reporting period.
b. Openings are defined as resource families included in the current count but not included in the baseline count. Note: the number of closures in this section is not the number of new resource families recruited for foster care as previously defined by the Co-Neutrals.
5. The Department will provide in separate spreadsheets detailed information on resource families that were part of the baseline count and current count, as has been provided in prior submissions.
a. The baseline detail will include an indicator for resource families that were closed as of the current count. The current count detail will include an indicator for resource families that were open as of the current count but not as of the baseline count. Of the latter group, a separate indicator will identify homes counted under the criteria toward the target of new homes developed.
38

 
 Co-Neutral Commentary Four
Issued April 2015
Compromise and Settlement Agreement
(D.G. vs. Yarborough, Case No. 08-CV-074)

Table of Contents
I. Introduction .......................................................................................................................................... 4 II. Summary of Progress and Challenges Ahead ....................................................................................... 5 III. Context: Children in DHS Custody....................................................................................................... 13 IV. Remedial Order ................................................................................................................................... 16 V. Seven Performance Categories: Assessment of Progress and Good Faith Efforts ............................. 16
A. Foster Care and Therapeutic Foster Care Homes ........................................................................... 16 B. Caseworker Caseloads and Supervisor Workloads ......................................................................... 26 C. Shelter Use ...................................................................................................................................... 29 D. Child Maltreatment in Care (MIC)................................................................................................... 37 E. Caseworker Visitation ..................................................................................................................... 41 F. Placement Stability ......................................................................................................................... 46 G. Permanency .................................................................................................................................... 47
Figures
Figure 1: Children in Care on September 30, 2014 by Age Group (Total = 11,466) ................................... 13 Figure 2: Children in Care on September 30, 2014 by Race (Total = 11,466) ............................................. 14 Figure 3: Children in Care on September 30, 2014 by Length of Stay (Total = 11,466).............................. 15 Figure 4: Children in Care on September 30, 2014 by Placement Type (Total = 11,466) ........................... 15 Figure 5: New Foster Care Homes, July - December 2014.......................................................................... 20 Figure 6: SFY15 New Foster Homes (Total = 447) ....................................................................................... 20 Figure 7: SFY15 New Foster Home Types (Total = 447) .............................................................................. 21 Figure 8: New Therapeutic Foster Homes, July - December 2014.............................................................. 24 Figure 9: Occupancy Rate of TFC Homes (Total = 506) ............................................................................... 25 Figure 10: Workers Meeting Workload Standards, December 31, 2014.................................................... 27 Figure 11: Worker Caseloads: Percent of Workers Meeting Workload Standards .................................... 28 Figure 12: Metrics 5.1 and 5.2 – Shelter-Nights, Children Ages 0 - 5 ......................................................... 32 Figure 13: Metric 5.3 – Shelter-Nights, Children Ages 6 - 12...................................................................... 34 Figure 14: Metric 5.4 – Shelter-Nights, Children Ages 13 and Older .......................................................... 35 Figure 15: Metric 1a - Absence of Maltreatment in Care by Resource Caregivers..................................... 39 Figure 16: Metric 1b - Absence of Maltreatment in Care by Parents ......................................................... 41 Figure 17: Metric 3.1 - Frequency of Visits by All Workers......................................................................... 43 Figure 18: Metric 3.2 - Frequency of Primary Worker Visits ...................................................................... 44 Figure 19: Metric 3.3a - Continuity of Worker Visits by Primary Workers ................................................. 45 Figure 20: Metric 6.2a - Permanency within 12 Months of Removal ......................................................... 51
2

Figure 21: Metric 6.2b - Permanency within 2 years of Removal............................................................... 52 Figure 22: Metric 6.2c - Permanency within 3 years of Removal ............................................................... 53 Figure 23: Metric 6.2d - Permanency within 4 years of Removal............................................................... 54 Figure 24: Metric 6.3 - Re-entry within 12 Months of Exit ......................................................................... 55
Tables Table 1: Summary of Target Outcomes ........................................................................................................ 7 Table 2: Pinnacle Plan Caseload and Workload Standard Commitments .................................................. 26 Table 3: Child-Nights by Shelter, July 1, 2014 to December 31, 2014 ........................................................ 30 Table 4: Unique Children by Shelter, July 1, 2014 to December 31, 2014 ................................................. 30 Table 5: Child-Nights in Shelters by Age, July to December 2014 and Change from Baseline ................... 34 Table 6: Baseline and Performance, Pinnacle Plan 1.17 ............................................................................. 36 Table 7: Placement Stability Baselines, Targets, and Current Performance............................................... 47 Table 8: Permanency Performance for Metric 6.1 ..................................................................................... 50 Table 9: Permanency Performance for Metric 6.4 ..................................................................................... 56 Table 10: Permanency Performance for Metric 6.5 ................................................................................... 57 Table 11: Permanency Performance Metrics 6.6, and 6.7.......................................................................... 58 Appendices Appendix A: Metric Plan Baselines and Targets (Updated February 2015)................................................ 59 Appendix B: Remedial Order....................................................................................................................... 67 Appendix C: November 14, 2014 Memorandum regarding Interim Targets.............................................. 70
Glossary Glossary 1: Acronyms.................................................................................................................................. 72
3

I. Introduction
On January 4, 2012, the Oklahoma Department of Human Services (DHS) and Plaintiffs reached agreement in a long-standing federal class action lawsuit against the State of Oklahoma on behalf of children in the custody of DHS due to abuse and neglect by a parent or guardian. That matter, D.G. vs. Yarborough, Case No. 08-CV-074, resulted in the Compromise and Settlement Agreement (CSA), which was approved by the United States District Court for the Northern District of Oklahoma on February 29, 2012. Under the CSA, the parties identified and the court approved Eileen Crummy, Kathleen Noonan, and Kevin Ryan as “Co-Neutrals,” and charged them to evaluate and render judgment about the ongoing performance of DHS to strengthen its child welfare system to better meet the needs of vulnerable children, youth, and families. The CSA gave DHS the opportunity to develop and present for the Co-Neutrals’ approval a comprehensive reform plan. DHS, with the assistance of state leaders, advocates, and other stakeholders, developed the Pinnacle Plan, which contains significant commitments to be implemented over a five-year period, beginning in State Fiscal Year (SFY) 2013. The Co-Neutrals approved the Pinnacle Plan on July 25, 2012.
The CSA charged DHS with identifying baselines and Target Outcomes to measure and report the state’s progress in core performance areas – henceforth referred to as the “seven performance categories” – which are:
 Maltreatment (abuse and neglect) of children in the state’s legal custody (MIC);  Development of foster homes and therapeutic foster homes (TFCs);  Regular and consistent visitation of caseworkers with children in the state’s legal
custody;  Reduction in the number of children in shelters;  Placement stability, reducing the number of moves a child experiences while in the
state’s legal custody;  Child permanency, through reunification, adoption or guardianship; and,  Manageable caseloads for child welfare staff.
As required by the CSA, the Co-Neutrals and DHS established the Metrics, Baselines, and Targets Plan (the “Metrics Plan”) on March 7, 2013. For each of the seven performance categories, the Metrics Plan establishes: the methodology for the performance metrics and measuring progress; parameters for setting baselines; interim and final performance targets and outcomes; and the frequency by which DHS must report data and information to the CoNeutrals and the public. Appendix A provides a summary chart of the metrics for the seven
4

performance areas, with corresponding baselines and targets, established by DHS and the CoNeutrals, and updated through February 2015.1
The CSA further requires the Co-Neutrals to provide commentary and issue a determination as to whether DHS’ data submissions provide sufficient information to accurately measure the Department’s progress. The Co-Neutrals have previously found data sufficiency for all the CSA performance areas and data metrics. Pursuant to the CSA, the Co-Neutrals may revise any determination of data sufficiency based on subsequent or ongoing data submissions as deemed appropriate.
This document serves as the Co-Neutrals’ Fourth Commentary under the CSA and reflects DHS’ performance, data, and information available through December 2014. In numerous instances, as described in this report, data and information are only available through September 30, 2014 (due to reporting lags or intervals agreed upon previously by the Co-Neutrals and DHS). In addition, in some instances, the Co-Neutrals report on more recent decisions or activities by DHS to reflect, when possible, the most current view of the reform.
II. Summary of Progress and Challenges Ahead With more than two years into DHS’ implementation of its reform effort, DHS reports progress in a number of areas, as well as ongoing challenges. The following highlights several accomplishments DHS achieved for Oklahoma’s children since the last report period:
 DHS Commitment to Close the DHS-Operated Shelters in Tulsa and Oklahoma City: To further its commitment to place children in family-based settings, DHS announced, following the end of this reporting period, plans to close the Pauline E. Mayer Shelter in Oklahoma City and the Laura Dester Shelter in Tulsa by the end of 2015.
 Caseworker Visitation with Children by Primary Caseworker: DHS continues to report strong performance in the area of caseworkers completing required monthly visits with the children assigned to them. In fact, DHS reported that 96.6 percent of required monthly caseworker visits with children occurred as described in this report. Further, DHS continues to show positive trending with the number of monthly visits conducted by a child’s assigned primary caseworker (77.2 percent),
1 Under Section 2.10(f) of the CSA, the Co-Neutrals shall issue Baseline and Target Outcomes, which shall not be subject to further review by either party but may at the discretion of the Co-Neutrals, after providing the parties an opportunity to comment, be revised by the Co-Neutrals.
5

reflecting DHS’ ongoing commitment to minimize the use of secondary caseworkers to support children in DHS custody.
 Reducing the Number of Child Welfare Supervisors who Carry and Manage their Own Cases: DHS reported that as of December 31, 2014, 34 supervisors carried more than two cases, which more than cuts in half the number reported for June 30, 2014, when 79 supervisors carried more than two cases. Additional work remains for DHS to meet the 90 percent target of supervisor workload compliance and to further reduce the number of cases managed by supervisors. However, DHS is making progress in this area.
 Reducing the Child Protective Services (CPS) Investigations Backlog: DHS developed and implemented a plan to reduce the number of overdue CPS investigations, effectively cutting the backlog from 1,335 in mid-November 2014 to 1,062 at the end of December 2014. As of March 23, 2015, DHS reported the backlog had been further reduced to 278 cases.
The Co-Neutrals observed, among others, the following challenges during this report period:
 Inadequate Supply of Foster and Therapeutic Foster Homes for Children: DHS understands that it must increase the number of available foster homes and therapeutic foster homes to meet the needs of children in care. During this reporting period, approvals for both types of homes lagged behind the monthly pace necessary to meet the annual and interim Target Outcomes.
 High Caseloads: DHS showed some modest progress in further reducing caseloads during the period, but most caseworkers endeavor to perform their jobs with excessive caseloads.
 Overuse of Shelters for Children Ages Thirteen and Older: The number of children ages 13 and older in shelters continued to trend negatively above the baseline established at the beginning of the reform. During the first six months of 2012, children ages 13 and older spent a total of 20,635 nights in shelters, which increased to 25,108 nights during the last six months of 2014. DHS must develop the placement resources and supports needed to care for these older children who linger the longest in shelters.
6

 Permanency Delays: For most of the metrics that track the timeliness of children achieving permanency, DHS’ performance has continued to trend negatively with outcomes worse than at the beginning of the reform.
The CSA requires that the Co-Neutrals determine whether DHS has “made good faith efforts to achieve substantial and sustained progress” toward a Target Outcome. This standard requires more than an assessment of DHS’ intentions but necessarily requires a conclusion by the CoNeutrals that is based on an analysis of the activities undertaken and decisions made by the state to accomplish a target or goal and the impact of those decisions and activities on achieving substantial and sustained progress as defined in the CSA, the Pinnacle Plan, and the Metrics Plan.
Fundamental to this analysis is a clear understanding of the core strategies DHS has identified and implemented to achieve substantial and sustained progress toward the Target Outcomes. At the time of this writing, the Co-Neutrals observed DHS starting to modify earlier strategies that have not resulted in progress, to make some necessary adjustments where possible, and to develop core strategies in certain performance areas. DHS is in the process of analyzing which additional core strategies should be employed for the balance of the performance areas under the CSA and is expected to present those plans to the Co-Neutrals in the Spring of 2015.

Table 1: Summary of Target Outcomes

Metric

Has Met Target Outcome

1. MALTREATMENT IN CARE (MIC)

1.A: Of all children in foster care Target is due

during the reporting period,

June 30, 2016

what percent were not victims

of substantiated or indicated

maltreatment by a foster parent

or facility staff member in a 12

month period.

Has Achieved Sustained, Positive Trending Toward
the Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

Page in Report

No

Reserving Judgment 38

7

Metric

Has Met Target Outcome

Has Achieved Sustained, Positive Trending Toward
the Target Outcome

1.B: Of all children in legal

Target is due

No

custody of DHS during the

June 30, 2016

reporting period, what number

and percent were not victims of

substantiated or indicated

maltreatment by a parent and

what number were victims.

2. FOSTER AND THERAPEUTIC FOSTER CARE (TFC) HOMES

2.A: Number of new foster

Target for SFY15 Annual and

homes (non-therapeutic, non- due June 30,

interim targets not

kinship) approved for the

2015 and interim yet due

reporting period.

target due March

31, 2015

Net gain/loss in foster homes Target for SFY15 Annual target not

(non-therapeutic, non-kinship) due June 30,

yet due

for the reporting period.

2015

2.B: Number of new therapeutic Target for SFY15 Annual target not

foster homes (TFC) reported by due June 30,

yet due

DHS as approved for the

2015

reporting period.

Net gain/loss in TFC homes for Target for SFY15 First net gain

the reporting period.

due June 30,

target for TFC due

2015

June 30, 2015

3. CASEWORKER VISITS

3.1: The percentage of the total Yes

Yes

minimum number of required

monthly face-to-face contacts

that took place during the

reporting period between

caseworkers and children in

foster care for at least one

calendar month during the

reporting period.

3.2: The percentage of the total Yes

Yes

minimum number of required

monthly face-to-face contacts

that took place during the

reporting period between

primary caseworkers and

children in foster care for at

least one calendar month during

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome
Reserving Judgment
Reserving Judgment
Reserving Judgment No
Reserving judgment
Yes
Yes

Page in Report 40
19 21 22 23 42
43

8

Metric

Has Met Target Outcome

the reporting period. 3.3a: The percentage of children in care for at least three consecutive months during the reporting period who were visited by the same primary caseworker in each of the most recent three months, or for those children discharged from DHS legal custody during the reporting period, the three months prior to discharge.
4. PLACEMENT STABILITY 4.1a: Percent of children in legal custody of DHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 8 days but less than 12 months, the percentage that had two or fewer placement settings. 4.1b: Percent of children in legal custody of DHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 12 months but less than 24 months, the percentage that had two or fewer placements. 4.1c: Percent of children in legal custody of DHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 24 months, the percentage that had two or fewer placement settings.

No
Target is due June 30, 2016
Target is due June 30, 2016
Target is due June 30, 2016

Has Achieved Sustained, Positive Trending Toward
the Target Outcome

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome

Page in Report

Yes

Yes

44

Yes, but limited Reserving Judgment 46 Yes, but limited Reserving Judgment 46 Yes, but limited Reserving Judgment 46

9

Metric

Has Met Target Outcome

4.2: Of those children served in foster care for more than 12 months, the percent of children who experienced two or fewer placement settings after their first 12 months in care.
5. SHELTER USE 5.1: The number of child-nights during the past six months involving children under age 2 years. 5.2: The number of child-nights during the past six months involving children age 2 years to 5 years. 5.3: The number of child-nights during the past six months involving children age 6 years to 12 years. 5.4: The number of child-nights during the past six months involving children age children 13 years or older.
6. PERMANENCY 6.1: Of all children who were legally free but not living in an adoptive placement as of January 10, 2014, the number of children who have achieved permanency. 6.2a: The number and percent of children who entered foster care 12-18 months prior to the end of the reporting period who reach permanency within one year of removal, by type of permanency.

Target is due June 30, 2016
No No No No
Target is due June 30, 2016
Target is due June 30, 2016

Has Achieved Sustained, Positive Trending Toward
the Target Outcome
No

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome
Reserving Judgment

Page in Report
46

Yes

Yes

31

Yes

Yes

31

No

No

34

No

No

34

Yes – for children Yes – for children ages 48 ages 12 and under 12 and under

No – for children No – for children ages ages 13 and older 13 and older

No

Reserving Judgment 50

10

Metric

Has Met Target Outcome

6.2b: The number and percent of children who entered their 12th month in foster care between 12-18 months prior to the end of the reporting period who reach permanency within two years of removal, by type of permanency.
6.2c: The number and percent of children who entered their 24th month in foster care between 12-18 months prior to end of reporting period who reach permanency within three years of removal, by type of permanency.
6.2d: The number and percent of children who entered their 36th month in foster care between 12-18 months, prior to the end of the reporting period who reach permanency within four years of removal.
6.3: Of all children discharged from foster care in the 12 month period prior to the reporting period, the percentage of children who re-enter foster care during the 12 months following discharge.
6.4: Among legally free foster youth who turned 16 in the period 24 to 36 months prior to the report date, the percent that exited to permanency by age 18; stayed in foster care after age 18, and exited without permanency by age 18.

Target is due June 30, 2016
Target is due June 30, 2016
Target is due June 30, 2016
Target is due June 30, 2016
Target is due June 30, 2016

Has Achieved Sustained, Positive Trending Toward
the Target Outcome
No

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome
Reserving Judgment

No

Reserving Judgment

No

Reserving Judgment

Yes

Reserving Judgment

No

Reserving Judgment

Page in Report 51
52
53
54
55

11

Metric

Has Met Target Outcome

6.5: Of all children who became legally free for adoption in the 12 month period prior to the year of the reporting period, the percentage who were discharged from foster care to a finalized adoption in less than 12 months from the date of becoming legally free. 6.6: The percent of adoptions that did not disrupt over a 12 month period, of all trial adoptive placements during the previous 12 month period. 6.7: The percent of children whose adoption was finalized over a 24 month period who did not experience dissolution within 24 months of finalization.
7. CASELOADS Supervisors Caseworkers

Target is due June 30, 2016
Target is due June 30, 2016
Target is due June 30, 2016
No No

Has Achieved Sustained, Positive Trending Toward
the Target Outcome
No

Has Made Good Faith Efforts to Achieve Substantial and Sustained Progress Toward the Target Outcome
Reserving Judgment

Page in Report
57

No

Reserving Judgment 57

Yes

Yes

58

Yes

Yes

28

No

Reserving Judgment 26

Methodology

To prepare this report, the Co-Neutrals conducted a series of verification activities to further evaluate DHS’ progress implementing its commitments. These activities included regular meetings with DHS leadership and staff, private agency leadership, and child welfare stakeholders. In addition, the Co-Neutrals undertook announced and unannounced visits to children’s shelters. The Co-Neutrals also reviewed and analyzed a wide range of aggregate and detailed data produced by DHS, and child and foster home records, policies, memos, and other internal information relevant to DHS’ work during the period.
The remainder of this report includes:
 Context Data of Children in DHS Custody (Section III);  Remedial Order (Section IV);

12

 Seven Performance Categories: Assessment of Progress and Good Faith Efforts (Section V);
 Appendices; and,  Glossary of Acronyms.
III. Context: Children in DHS Custody Demographics
DHS reported there were 11,466 children in custody as of September 30, 2014 compared to 11,063 children in custody on March 31, 2014. During the reporting period from April 1, 2014 to September 30, 2014, 2,842 children entered care and 2,779 children exited care.2
Young children aged zero to five years make up the largest portion of children in care (5,613 or 49 percent). Children aged six to 12 years comprise 35 percent (4,021) of the population in care. Sixteen percent (1,832) are 13 years or older, as detailed in the following chart:
Figure 1: Children in Care on September 30, 2014 by Age Group (Total = 11,466)

13 or older 1,832 16%

0 to 1 2,061 18%

6 to 12 4,021 35%

2 to 5 3,552 31%

Source: DHS Data
With regard to gender, the population is split almost equally — 51 percent male and 49 percent female. With regard to race, the population of children is nine percent African-American, 38
2 The number of children in care at the end of this period comes from federal data reporting, while the number of children in care at the end of last period comes from a non-federal data submission. Because of slight differences in reporting, adding the entries and subtracting the exits from the number of children in care as of the previous reporting period will not sum to the children in care at the end of this reporting period.
13

percent White, and eight percent Native American. In addition, 17 percent of children identified with Hispanic ethnicity (and can be of any race). Twenty-eight percent identified with multiple race and ethnicity categories, of which 73 percent identified as Native American.3
Figure 2: Children in Care on September 30, 2014 by Race (Total = 11,466)

Multiple race/ ethnicity 28%

AfricanAmerican
9%

Hispanic 17%

Native American
8%

White 38%
Source: DHS Data

As presented in Figure 3 below, DHS’ data shows that of the children in care on September 30,
2014, 43 percent (4,877) were in care for less than one year; 31 percent (3,533) between one
and two years; 14 percent (1,594) between two and three years; ten percent (1,142) between three and six years; and three percent (320) for more than six years. 4

3 Overall, 28 percent of children identified as Native American including those children who identified with more than one race and ethnicity category. 4 In Figures 3 and 4, percentages do not add up to 100 due to rounding.
14

Figure 3: Children in Care on September 30, 2014 by Length of Stay (Total = 11,466)

1-2 years 3,533 31%

2-3 years 1,594 14%

Less than one year 4,877 43%

3-6 years 1,142 10%
6+ years 320 3%
Source: DHS Data

As the following chart demonstrates, 91 percent of children in DHS’ custody live in family settings, including with relatives (35 percent), foster families (43 percent), with their own parents (10 percent), and in homes that intend to adopt (four percent). Of children in custody, 888 (eight percent) live in institutional settings, including residential treatment and other congregate care facilities. The remaining two percent reside in unidentified placements or are AWOL.

Figure 4: Children in Care on September 30, 2014 by Placement Type (Total = 11,466)

Foster Family Home (Non-
Relative) 4,876 43%

Group Home 522 (5%) Institution 366 (3%)
Runaway 93 (.8%)
Trial Home Visit 1,146 (10%)
Other 99 (.9%)

Foster Family Home (Relative)
3,965 35%

Pre-Adoptive Home 399 (4%)
Source: DHS Data

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IV. Remedial Order
Section 2.14 of the CSA vests the Co-Neutrals with the authority to require, at any time, that DHS undertake and maintain diagnostic and remedial activities for any performance area if the Department fails to achieve positive trending or begins to trend negatively. On November 14, 2014, the Co-Neutrals issued a Remedial Order5 directing DHS to undertake and maintain diagnostic and remedial activities in three areas: 1) developing foster homes; 2) achieving manageable caseloads; and 3) reducing a backlog of child abuse and neglect investigations. The Remedial Order requires DHS to identify core strategies to improve performance in each of these areas. Additional information and reports on progress related to the Remedial Order is included in the corresponding sections below on foster homes and caseloads.
V. Seven Performance Categories: Assessment of Progress and Good Faith Efforts
In this section, as required by the CSA, the Co-Neutrals review the seven performance categories under the CSA, providing commentary on DHS’ overall progress and its efforts to achieve substantial and sustained progress toward each Target Outcome. As described in Table 1 (Summary of Target Outcomes) and Appendix A, not all performance categories and their corresponding metrics have a Target Outcome that was due before the end of this reporting period (through December 31, 2014).
A. Foster Care and Therapeutic Foster Care Homes
In the Pinnacle Plan, DHS agreed to develop a broad array of family-based placements sufficient to meet the needs of children in its custody. DHS committed to develop innovative strategies to recruit, support and retain foster families and to streamline the foster home approval process. DHS acknowledged it must develop many more safe and stable family-based placements in order to meet its commitments to reduce shelter care use, ensure child safety, improve placement stability, and achieve positive permanency outcomes for children and youth.
DHS faced many challenges throughout SFY14 as it transitioned to a new model of publicprivate agency partnerships for the recruitment of foster homes and failed to make substantial or sustained progress toward achieving the SFY14 Target Outcome to develop 1,197 new foster homes.6 Now in SFY15, half way through the timeline set for the full implementation of the Pinnacle Plan, DHS has pledged to adopt a focused set of core strategies to significantly increase the pool of foster and therapeutic homes available for the placement of children and youth, which has not been accomplished over the last two years.
5 See Appendix B for the Remedial Order 6 See Co-Neutral Commentary 3 for a full discussion of SFY14 performance.
16

Foster Home Targets
The CSA requires that targets are established each year for the number of foster homes developed for children, including children in need of therapeutic foster care. Under the CSA, the Co-Neutrals are authorized to verify and confirm a baseline of available homes and to establish DHS’ performance targets. In July 2014, after reviewing extensive information and data in the context of multiple discussions with DHS leadership, the Co-Neutrals established the SFY15 (July 1, 2014-June 30, 2015) foster home target at 904 new non-kin foster homes. The net gain foster home target for this same period was established at 356 homes.7
On November 14, 2014, to better track DHS’ progress in meeting the annual target, the CoNeutrals established an interim target for foster homes: DHS must develop 678 new non-kin foster homes by March 31, 2015.8 For future years, the Co-Neutrals will establish an annual interim target (both date and target number to be determined) which will be based on the annual target established for the fiscal year. (See Appendix C for the November 14, 2014 memorandum that established the requirement for an annual interim target.)
The Co-Neutrals established the SFY15 criteria for new non kin-foster homes as follows:9
1. A home certified for the first time as a foster home. This includes homes certified at the same time to be both an adoptive and foster home.
2. A home newly certified as a foster home if the home is already approved as an adoptive home.
3. A home reopened or recertified as a foster home as long as the home has been closed as a foster home for more than twelve months.
4. A home certified as a kinship home that is then reassessed and/or certified as a traditional foster home resource open for non-kinship placements. OKDHS must be able to identify these converted or dually certified homes in its reporting if the home existed as a kinship home within the past 12 months.
The SFY15 annual target of 904 new foster homes requires that DHS approve approximately 75 new homes each month. During the first four months of SFY15, performance appeared to lag as DHS approved 274 new homes, approximately 69 new homes each month. (See Figure 5.) DHS reported to the Co-Neutrals that it was working to improve performance by establishing
7 Beginning in December 2014, DHS reported progress toward achieving the net gain target in its monthly public report. 8 DHS will report progress toward achieving the interim target for new non-kin foster homes in its monthly reports. 9 The Co-Neutrals annually review these criteria and update them as appropriate.
17

workgroups of private agency and foster parent representatives to identify and address systemic barriers to timely foster home approval. As a result, DHS reported that it had contracted for an electronic fingerprinting service to reduce wait times that persisted in its manual fingerprinting process. DHS also reported that it discontinued DHS’ staff review of new private agency foster home studies for three of the four private agencies retained to recruit new homes because the home reviews consistently met DHS review criteria and because the DHS secondary review slowed foster home approval. DHS further reported that, with the assistance of independent consultants, work had begun to develop a statewide recruitment plan that would be implemented by DHS and its private agency partners.
While DHS’ efforts early in SFY15 appeared to become more focused and collaborative with the private agencies, the Co-Neutrals were concerned that DHS had not developed the overall capacity to recruit the number of foster homes sufficient to meet the needs of children and youth in its care. The Co-Neutrals urged DHS to greatly expand its contracted foster home development work to additional providers and directed DHS to develop a plan that includes a set of core strategies to timely, substantially, and sustainably increase the number of available of foster and therapeutic foster homes.
The Remedial Order issued on November 14, 2014 requires DHS to adopt a set of core strategies in a remediation plan designed to catalyze the process of new foster home development. DHS submitted its remediation plan to the Co-Neutrals on January 23, 2015 and the Co-Neutrals conditionally10 approved the plan on February 6, 2015. DHS resubmitted a revised plan on March 10, 2015, and the Co-Neutrals gave final approval of the plan on March 12, 2015.
In the plan, DHS acknowledged that its decision to limit the 2013 RFP foster home contracts to four agencies did not bring sufficient capacity to the system quickly enough. DHS has now committed to rapidly expand foster home recruitment contracts with one of the supported foster care agencies and, for the first time, to contract for foster home development with youth services agencies throughout Oklahoma. DHS’ remediation plan states:
DHS has contracted with private agencies for the recruitment and retention of resource families and established, along with providers, the recruitment goals for the year. Until recently, efforts were not producing an increased number of certified resource families at a pace that would ensure goal achievement. Therefore it is essential to evaluate and assess other options to ensure targets are met within established timeframes. DHS will immediately expand the use of
10 The Co-Neutrals requested that DHS submit additional data and information by March 10, 2015.
18

current contracts and will immediately contract with additional providers to expand capacity. These efforts are underway with a target date of March 1, 2015 for the full execution of additional contracts.11
DHS also committed in the remediation plan for a senior level staff member to:
 conduct weekly reviews of prospective foster homes engaged in the recruitment process with private agencies to assess the timeliness of home approval and to work with agencies to reduce barriers as they are identified;
 to develop a statewide SFY16 recruitment plan, with the assistance of national experts and in collaboration with private agency partners, to assign regional recruitment coordinators who will partner with private agencies to implement targeted recruitment plans; and,
 to contact foster families that exited in good standing within the last two years to determine their interest in fostering and to implement strategies for improved customer service.
DHS also agreed to utilize data to modify existing foster care contract requirements to ensure that foster home recruitment is targeted to the populations of children in care who need homes. DHS has also committed to improve supportive services available to foster families through an array of efforts.
DHS has much work to do in the upcoming months to implement the commitments in the remediation plan, to timely address barriers and to demonstrate good faith efforts to achieve substantial and sustained progress toward the SFY15 Target Outcome of 904 new non-kin foster homes. The Co-Neutrals will evaluate the quality, pace and progress of DHS’ efforts in the October 2015 Commentary and, for this reporting period, reserve judgment on DHS’ efforts to achieve substantial and sustained progress toward the SFY15 foster home Target Outcomes.
SFY15 Foster Home Performance
In the first six months of SFY15, DHS and its private agency partners approved 447 new foster homes.
11 From DHS’ January 23, 2015 Remedial Order, Foster Home Remediation Plan
19

Figure 5: New Foster Care Homes, July - December 2014

120

112

100

88

80

71

61

61

60

54

Total new homes =
447

40

20

0 Jul-14 Aug-14 Sep-14 Oct-14 Nov-14 Dec-14
Source: DHS Data

The private agencies approved 302 new homes (68 percent), and DHS approved 145 new homes (32 percent). The private agencies made significant gains during the current period compared to performance in SFY14, when they developed only 35 percent of all new foster homes.
Figure 6: SFY15 New Foster Homes (Total = 447)

Private Agency
301 67%
DHS 145 32%

Other 1
.22%

Source: DHS Data
Of the 447 foster homes approved during the first half of SFY15, 248 families (55 percent) were newly recruited by DHS and the private agencies. One hundred forty homes (31 percent) were already approved by DHS as adoption or kinship homes and were then converted to traditional
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foster homes. Fifty–nine (13 percent) were DHS resource homes12 that were closed for more than a year and reopened during the first six months of SFY15.13
Figure 7: SFY15 New Foster Home Types (Total = 447)

Kinship/

Adoption

New 248

Conversion 140

55%

31%

Reopened 59 13%

Source: DHS Data

SFY15 Net Gain Target and Performance
The Co-Neutrals established the SFY15 net gain Target Outcome of 356 foster homes and worked with DHS to establish a written methodology for calculating net gain/loss. DHS presented data showing that 1,907 foster homes were open on July 1, 2014 and 2,139 foster homes were open on January 1, 2015 for a net gain of 232 foster homes in the first six months of SFY15.14
Of the 2,139 foster homes reported as open on January 1, 2015, 1,535 (72 percent) were occupied and 604 (28 percent) were vacant.15 DHS’ data further showed that of the 604 foster homes vacant on January 1, 2015, 152 (25 percent) had been vacant at least six months, and 41 homes (seven percent) had been vacant over one year. The length of time these foster homes

12 DHS resource homes that are reopened could have been previously approved as a number of different types of DHS resources, including traditional, kinship, emergency foster care, TFC and DDSD homes. 13 Due to rounding, the percentages do not add up to 100. 14 As of this report writing, DHS identified 149 contracted foster homes that appear in one or both baseline datasets for June 30, 2014 and January 1, 2015. DHS determined that these homes are not available to any child in need of a foster home placement and should be removed from the baseline data. DHS and the Co-Neutrals are jointly reviewing DHS’ data and will provide an update in the October 2015 Commentary. 15 Seventy-two vacant foster homes were jointly approved as another type of resource (adoption, DDSD, etc.) and were occupied by children in those resource types on January 1, 2015.
21

have been vacant raises questions and concerns as it is widely acknowledged that there is not a sufficient pool of foster homes for children.
The Co-Neutrals also found that DHS’ data showed that a significant percentage of the homes reported vacant were also listed as unavailable for placements. DHS and the Co-Neutrals reviewed this data and found that some data and program adjustments would be needed to ensure that DHS’ data accurately shows which foster homes are open and available for child placements and which ones should be closed or temporarily tagged as unavailable for placements.
The Co-Neutrals understand there are a number of reasons why a foster home would remain open yet be registered as unavailable to accept placements for a short period of time. These reasons include foster parents needing time for medical care, vacations, changes in family structure (e.g., birth or adoption of a child), home relocation, or if the home is experiencing a CPS investigation. However, DHS shared with the Co-Neutrals that it had identified some challenges with its child welfare data system (KIDS) that lead to inconsistencies in recording whether foster homes are available or unavailable. DHS understands the critical need to have an accurate picture of its pool of available foster homes, both to support caseworkers who at any moment are trying to place children in DHS’ foster homes and to establish appropriate targets for developing the foster homes Oklahoma needs for children in DHS custody.
At the time of this report writing, DHS leadership had already begun to make changes in the KIDS system and provide guidance to all DHS foster care supervisors that will help establish a more accurate record of those foster homes that are open and available to accept placements. Further, DHS and the Co-Neutrals are continuing a joint review of the foster home data as it relates to homes reported as vacant and/or unavailable and the Co-Neutrals will provide an update regarding this review in their next Commentary.
Therapeutic Foster Care
DHS agreed to increase the number of therapeutic foster care (TFC) homes available to meet the needs of children in its custody. Children who are assessed to have behavioral health needs and who can live in the community with specially trained foster parents are eligible to be placed in TFC homes. DHS committed to develop a sufficient pool of TFC homes within the continuum of placement settings in order to avoid children’s placement in higher levels of congregate care, to step-down children from higher levels of care, and to ensure that appropriate services are provided for children in need of behavioral health treatment.
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In advance of each state fiscal year, DHS committed to provide to the Co-Neutrals the agency’s proposed target for TFC home approval. In setting the proposed target, DHS agreed to conduct an analysis of the children in placement who are in need of TFC homes as compared to available TFC homes to analyze how well existing capacity meets the projected need.
In July 2014, DHS submitted to the Co-Neutrals its proposed TFC new home target for SFY15. DHS reported that it had analyzed available data and needed 196 new TFC homes statewide. DHS reported that it continued to further analyze TFC home data and child waiting lists and proposed the target to be set at 150 new TFC homes, 75 percent of the identified need. The Co-Neutrals accepted DHS’ proposal and established the SFY15 target at 150 new TFC homes which, if met, would be a 35 percent performance improvement over SFY14 when DHS developed 111 new TFC homes.
At the close of SFY14, DHS reported that 11 percent of TFC-only homes had been vacant for at least six months. The Co-Neutral’s raised concern in the October 2014 Commentary regarding the high TFC vacancy rate and DHS’ monitoring of its TFC bed utilization. In order to bring focus to these issues, on November 14, 2014 and as provided for in Section 2.10 (f) of the CSA, the Co-Neutrals revised the Metrics, Baselines and Targets Plan (Metrics Plan) to include a net gain target and reporting requirements for TFC homes.
Therapeutic Foster Care (TFC) homes - Annual Net Gain Target
The Metrics Plan establishes that “OKDHS shall establish targets for licensing new therapeutic homes to be submitted to the Co-Neutrals by May 30th of each year.” The Co-Neutrals require that DHS also establish an annual net gain target for new TFC homes.16
a. For SFY15, the Co-Neutrals establish a net gain target of 56 TFC homes. For future years, DHS will submit to the Co-Neutrals proposed annual net gain targets for TFC homes by May 30th of each year.
b. Beginning in December 2014, DHS will report progress toward achieving the SFY15 net gain target of new TFC homes in its monthly reports.
In the first six months of SFY15, DHS reported that 63 new TFC homes were opened. DHS reported a net gain of 31 TFC homes with a baseline of 475 unique TFC homes open on July 1, 2014 and 506 unique TFC homes open on January 1, 2015.17 In the second half of SFY15, DHS
16 New TFC homes included in the net gain count are subject to the SFY15 Criteria for Counting New Non-Kin Foster and TFC Homes established by DHS and the Co-Neutrals. 17 During the period, 37 TFCs closed, while 68 TFC homes opened during the period.
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must make good faith efforts to accelerate performance and develop 87 additional TFC homes, (15 homes per month) to meet the SFY15 Target Outcome of 150 homes.
SFY15 TFC Performance
Figure 8: New Therapeutic Foster Homes, July - December 2014

14

13

12

12

12

10

9

8

6

9 8

Total new homes =
63

4

2

0 Jul-14 Aug-14 Sep-14 Oct-14 Nov-14 Dec-14

Source: DHS Data

Over the past two years, DHS reported to the Co-Neutrals that it worked to improve data quality regarding the number of open and available TFC homes as well as the number of children requiring TFC placements. In recent discussions, DHS advised the Co-Neutrals that the historical TFC waiting list of 160-180 children continues to persist. At the same time, DHS advised the Co-Neutrals that 185 TFC beds were open and available but were vacant. When questioned regarding how it is possible for a waiting list of up to 180 children to exist at the same time 185 vacant beds are reportedly available, DHS acknowledged that there does not currently exist a systemic, routine process to manage bed utilization with the TFC agencies. Further, DHS confirmed that it had not conducted an analysis of its data to understand the problem so that corrective steps could be taken. Rather, DHS reported that when a home is listed as vacant and available for 90 days or more, DHS staff contact the private agency and inquire about the status of the home. It is unclear to the Co-Neutrals, however, what action DHS takes either to ensure a vacant bed is filled or, when appropriate, to remove a home from the list of available placements. The Co-Neutrals conducted their own data analysis and

24

determined that there were 506 TFC homes open on January 1, 2015, of which 323 (64 percent) were occupied and 183 (36 percent) were vacant.18
Figure 9: Occupancy Rate of TFC Homes (Total = 506)

Vacant 183 36%

Occupied 323 64%

Source: DHS Data
Of the 183 TFC homes vacant on January 1, 2015, 79 (43.2 percent) had been vacant at least six months, and 37 homes (20 percent) had been vacant over a year. Here too, as DHS reviews and works to establish accuracy in how its foster care homes are listed as available or unavailable, it must conduct the same close review to determine if the TFC homes listed as vacant and available or unavailable for extended periods are still viable or should be closed.
DHS reported to the Co-Neutrals that its focus in the first half of SFY15 was to increase reimbursements to TFC agencies, to work with TFC agencies to develop recruitment plans and to develop performance based contracts scheduled to be implemented with TFC agencies in SFY16. DHS reported that the performance based contracts are meant to support the development of new homes, the placement of teenagers, and the placement of children with higher levels of behavioral and mental health acuity. TFC agencies reported to the Co-Neutrals that its work with DHS has been collaborative but that the recruitment of new TFC homes continues to lag. As of the writing of this report, DHS has not yet identified, but indicates it will, a set of core strategies and activities to address persistent problems in this performance area. The Co-Neutrals conclude for this reporting period that DHS has not yet made good faith efforts to achieve substantial and sustained progress to achieve the Target Outcomes for TFC homes.
18 Twenty-five TFC homes are jointly approved and occupied as a non-TFC resource.
25

The Co-Neutrals have advised DHS to move with a sense of urgency to develop a core strategy plan in collaboration with TFC providers. The plan should be grounded in data and analysis to improve TFC development, maximize bed utilization and eliminate child waiting lists. The CoNeutrals expect DHS to submit the TFC core strategy plan in the Spring of 2015 for approval and to implement the plan when approved. The Co-Neutrals will report on DHS’ efforts to implement the plan in the October 2015 Commentary.

B. Caseworker Caseloads and Supervisor Workloads

Performance Standards – Caseworker Caseloads19

The CSA requires performance targets for caseworker caseloads and supervisor workloads (CSA Section 2.10). Under the Pinnacle Plan, DHS committed to the following caseload standards:

Table 2: Pinnacle Plan Caseload and Workload Standard Commitments

Role

Standards

Weight Per Case

CPS OCA Family Centered Services Permanency Planning Resource Adoption Supervisors

12 Open Investigations or Assessments 12 Open Investigations 8 Families 15 Children 22 Families 8 Families & 8 Children 1 Supervisor Dedicated to 5 Workers

0.0833 0.0833 0.125 0.0667 0.0455 0.0625 0.2 per worker

Performance – Target Outcomes

DHS reported that 34.2 percent of caseworkers met the established workload standard as of December 31, 2014, with 8.6 percent of workers close to the standard and 57.2 percent over the workload standard.

19 The caseloads referenced in the baseline, targets, and performance data represent an aggregate of all caseloadcarrying worker types (permanency, CPS, family centered services, foster care/Bridge and adoption) combined, calculating each worker’s compliance with his/her own caseload standard.
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Figure 10: Workers Meeting Workload Standards, December 31, 2014
Close 8.6%

Met 34.2%

Over 57.2%

Source: DHS Data
DHS committed to achieve a final target of 90 percent of caseworkers meeting workload standards by June 30, 2014. As presented in Figure 11 below, DHS did not meet this Target Outcome by either June 30, 2014 or December 31, 2014.
DHS’ caseload performance data, as of September 30, 2014, showed that DHS was trending slightly negatively against the starting baseline of 27 percent, as only 26.6 percent of caseworkers were meeting their caseload standard. Shortly thereafter, the Co-Neutrals issued the Remedial Order, which directed DHS to develop a staff tracking report that integrates key information, including current caseloads, number of workers needed to achieve 90 percent caseload compliance, number of caseworker positions allocated and filled in each district, number of vacant positions, and other relevant factors. The Co-Neutrals also required that DHS identify a set of “priority districts” with the greatest caseload challenges, vacant positions and staff turnover. Further, the Remedial Order directed DHS leadership to conference weekly with the district directors of the priority districts to review their district’s data and progress, challenges and barriers with caseloads, hiring and retention.
At the close of the reporting period, the Co-Neutrals observed DHS working diligently to assemble the most rigorous (to date), data-informed, statewide hiring plan constructed by the agency during the past three years. This work, which continues as of the writing of this report, integrates district-level attrition analysis and accounts for the amount of time DHS has committed to offer newly hired staff before distributing a gradually increasing caseload to them. The document identifies which districts must hire what staff by when in order to bring DHS to 90 percent caseload compliance by the Summer of 2016. In this Commentary, the CoNeutrals reserve judgment on DHS’ efforts to achieve substantial and sustained progress toward the caseload Target Outcomes in order to give the agency additional time to implement
27

the hiring plan as created. The Co-Neutrals will draw future judgments based in large part on an analysis of DHS’ efforts to implement the hiring plan, including overcoming systemic barriers, proactively recruiting staff, improving retention and streamlining hiring processes.
Figure 11: Worker Caseloads: Percent of Workers Meeting Workload Standards

70%

65.0%

60%

50%

40%

30%

27.0%

20% 8.0%
10%

0% Baseline

62.2%
27.8% 10.0% 30-Jun-14

57.2% 34.2% 8.6% 31-Dec-14

% Met

% Over

% Close Source: DHS Data

Performance Standards and Target Outcomes – Supervisor Workloads
DHS understands that good supervisory support for caseworkers, especially new caseworkers, is essential to supporting effective and consistent child welfare practice and positive outcomes for children and families. DHS committed to meeting the same target for supervisor workloads as it did for caseloads: 90 percent of supervisors meeting the 1:5 worker ratio by a final target date of June 30, 2014.
Although DHS has not achieved the target of 90 percent of supervisors meeting the 1:5 workload standard, DHS showed substantial progress over the last six months with the number of supervisors meeting the standard, which also reflects a decrease in the number of supervisors who are assigned and managing their own cases.
As of December 31, 2014, DHS data shows that 70.9 percent of supervisors met the 1:5 workload standard, compared to just 58.8 percent on June 30, 2014. DHS also reported improvements with the number of supervisors moving into the “close” range for meeting the standard (up to 18 percent from 17.3 percent) and a positive decline (23.9 percent down to 11.1 percent) for the percent of supervisors managing workloads over the standard.
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Child welfare cases managed by supervisors carry the same case weight as the cases managed by caseworkers and are calculated into each supervisor’s workload ratio. As of June 30, 2014, 79 supervisors carried more than two cases, but by December 31, 2014, only 34 supervisors carried more than two cases. While important work remains to be done, both to meet the 90 percent Target Outcome of supervisor workload compliance and to further reduce the number of cases managed by supervisors, DHS is clearly making progress in this area.
C. Shelter Use
The CSA requires that DHS establish performance targets related to the placement of children in shelters (CSA Section 2.10). More specifically, DHS committed that it would “ensure all children are cared for in family-like settings” and “stop its use of temporary placement in shelters for all children under 13 years of age.”
To support their review of DHS’ performance in this area, the Co-Neutrals engage regularly in a variety of activities including: announced and unannounced visits and interviews at the Laura Dester (LD) and Pauline E. Mayer (PEM) shelters; announced visits at private shelters; review of monthly outcomes data from DHS; review of shelter authorization forms to understand why children are admitted to shelters and if reasonable efforts are made to identify a family-like placement before resorting to a shelter placement; and finally, review of PEM and LD shelter incident reports, which are filed with the shelter director when an incident occurs that requires either medical attention or discipline of shelter residents. In this period, the Co-Neutrals reviewed 64 shelter authorization forms and 177 shelter incident forms.
During this review period, the Co-Neutrals focused their shelter Target Outcome verification efforts on analyzing, discussing and evaluating DHS’ proposed core strategies to achieve substantial and sustained progress towards the shelter Target Outcomes. This involved multiple discussions with DHS and external stakeholders at a time when DHS’ progress was decidedly mixed. While the population of young children in shelters remains well below the original baseline, the population of older children in shelters far exceeds the baseline set in 2012.
DHS’ Decision to Close Oklahoma’s State-Operated Shelters
In February 2015, after this reporting period ended, DHS leadership announced plans to steadily reduce the number of children placed in DHS’ two state-operated shelters (PEM and LD) in order to close the facilities for use as shelters. As of the time of this report writing, DHS indicates it will close the two public shelters by the end of 2015. The Co-Neutrals commend DHS for this decision, which should result in additional reductions in shelter-nights, particularly with the younger groups of children who, for this reporting period, were placed more often in the two state shelters as shown in Table 3 and Table 4 below. The closures make sense so long
29

as DHS does what it has committed to do: substantially expand the number of family-based placements for children in care. Older children (ages six and older) are more often placed in the 27 non-state operated shelters that DHS accesses as shown in Table 3 and Table 4 below. As such, the Co-Neutrals will continue to monitor DHS’ shelter placements in both state operated and non-state operated shelters.
In addition to its decisions to close the two public shelters, DHS has more recently adopted a number of additional core strategies with regard to shelters. The Co-Neutrals will review these strategies as they begin to be implemented and discuss them in future reports.
Table 3: Child-Nights by Shelter, July 1, 2014 to December 31, 2014

Age Group
Age 0-1 Age 2-5 Age 6-12 Age 13+ Total Child-nights

Total ChildNights
505 2,689 18,602 25,137 46,933

Shelter

Other Shelters
143 684 10,050 17,277 28,154

Laura Dester
56 1,019 5,160 5,617 11,852

Pauline E. Mayer
306 986 3,392 2,243 6,927

% Other Shelters

% Laura Dester and Pauline Mayer Shelters

28%

72%

25%

75%

54%

46%

69%

31%

60%

40%

Table 4: Unique Children by Shelter, July 1, 2014 to December 31, 2014

Age Group

Total Unique Children

Other Shelters

Shelter Laura Dester

Pauline E. Mayer

% Other Shelters

% Laura Dester and Pauline Mayer Shelters

Age 0-1

33

8

8

17

24%

76%

Age 2-5

119

41

38

40

34%

66%

Age 6-12

522

314

119

89

60%

40%

Age 13+

622

435

108

79

70%

30%

Total Children

1,296

798

273

225

62%

38%

Note: Children who stayed in more than one shelter category were counted for each category. Because of this, not all percentages add up to 100.

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Performance Standards
In the Metrics Plan, the Co-Neutrals selected the number of “child-nights” spent in shelters as the metric to assess Oklahoma’s progress in eliminating and reducing shelter use. One “childnight” is defined as “one child in a shelter at midnight.” The total number of child-nights is calculated by summing the number of children in shelters at midnight for each night of the reporting period. The Pinnacle Plan includes an exception for shelter placement if the child is part of a sibling set of four or more being placed together.20
The timelines set in the Metrics Plan for DHS to meet its shelter targets have been extended twice as DHS’ ongoing shortage of foster homes has negatively impacted its commitment to the original targets of ending shelter placements for children ages zero to one by December 31, 2012; children ages two to five by June 30, 2013; and, children six to 12 by June 30, 2014. DHS has been working toward the following extended targets, which were approved in June 2014:
 By July 1, 2014, children under the age of 8 years old will be placed in family-like settings rather than staying overnight in shelters unless they are part of a large sibling group of three or more children.
 By October 1, 2014, children under the age of 10 years old will be placed in family-like settings rather than staying overnight in shelters unless they are part of a large sibling group of three or more children.
 By January 1, 2015, children under the age of 13 years old will be placed in family-like settings rather than staying overnight in shelters unless they are part of a large sibling group of three or more children.
 By April 1, 2015, DHS will meet the original target and expectation of placing children under the age of 13 years old in family-like settings unless they are part of a large sibling group of four or more children.
Performance for Children under Age Six, Shelter Metrics 5.1 and 5.2
Although DHS has not reached the Target Outcome of zero child-nights in shelters for children under age six, it has sustained a substantial reduction in shelter-nights in comparison to the baseline of 2,923 child-nights for children ages zero to one, and 8,853 child-nights for children ages two to five. During this reporting period, DHS identified 505 child-nights in shelters for
20 In June 2014, DHS requested and the Co-Neutrals approved that a set of three siblings, with all children being over six years old, could be considered - until April 1, 2015 - a large sibling group for the purposes of receiving an exception to place the siblings together in a shelter.
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children zero to one, representing 33 unique children. DHS reported that the shelter placements for 23 of these 33 children met an automatic exception. Further, DHS’ data shows 2,689 child-nights in shelters during this report period for children ages two to five, representing 119 unique children. DHS reported that the shelter placements for 49 of these 119 children met an automatic exception.
Figure 12: Metrics 5.1 and 5.2 – Shelter-Nights, Children Ages 0 - 5

10,000 9,000 8,000 7,000 6,000 5,000 4,000 3,000 2,000 1,000 0

8,853

2,923 843 190 505

4,357 2,689
2,080

Ages 0 -1 Baseline Jan - 14

Jul - 14

Ages 2 - 5

Jan - 15

Source: DHS Data

The Co-Neutrals’ Commentary Three found that DHS had made good faith efforts to achieve substantial and sustained progress with regard to eliminating shelter placements for children under age six. DHS has maintained a substantially lower number of child-nights relative to the baseline and has taken a significant step to further reduce shelter placements of the youngest children with its commitment to close the two state-operated shelters. However, shelter records show that DHS continues to struggle with the shortage of family-like placements available to meet the diverse and special needs of children in DHS custody.
For this period, the Co-Neutrals reviewed 64 shelter authorization forms (shelter placement forms that are completed by casework staff and approved by DHS senior management), which show a pattern of problems with regard to placements for young children, though they also reflect a dynamic that exists for older children too:
 Police Involvement: For the most part, children who are removed by the police continue to be taken directly to shelters or shelter admission is assumed. In the forms reviewed this period, there were a few police-involved removals in which shelter admission was not automatic, which is progress. However, the majority of cases with police involvement reviewed by the Co-Neutrals resulted in shelter admission. In
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addition, the shelter authorization forms show that police involvement is viewed by some DHS caseworkers (and signed off by managers) as meaning reasonable efforts to avoid a shelter placement are not needed. For example, one form noted that “efforts were not made at the time of entry because the children were in Protective Custody.” This practice will need to be curtailed to limit further the number of young children entering shelter care.  Specialized Medical Homes: In two cases, foster parents asked DHS to remove children who had been placed with them because of the special medical needs of the children. DHS will need to review whether their existing cadre of homes includes an adequate number of foster parents who are willing to care for children with complex or chronic medical conditions. For the most part, the shelters do not have full-time medical staff (neither the public nor private shelters) and are an inappropriate option for these children.  Foster Home Placement Disruptions: Of the 64 authorization forms reviewed, 28 involved admission to shelters because of placement disruption. Of the 28, two were reported to involve children who had medical needs that could not be handled by the foster parents (see above). In 13 of the 28, the child’s behavior was cited as the problem; the children in most of these cases were about four years old. Better training and support for foster parents to manage the behaviors of young children experiencing the effects of stress and trauma will help DHS avoid unnecessary placement disruptions and shelter placements like those described above.  TFC Placement Disruptions: It is unclear why children’s placements are disrupting from TFC homes given that these caregivers are trained and selected to work with higherneeds children. In two cases, TFC homes requested that a young child be removed due to their behavior issues (e.g., kicking, screaming, and biting). In these cases, one child was age four and the other was age seven. DHS will need to review, analyze and address why these disruptions are occurring.
Despite some slippage with regard to progress for young children admitted to shelters, the CoNeutrals still find that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcomes for children under age six in shelters (shelter Metrics 5.1 and 5.2). While DHS has not reached the Target Outcomes of zero “child-nights” in shelters for children under age six who do not meet a shelter placement exception under the Pinnacle Plan, DHS’ work has resulted in a sustained, positive trend toward the Target Outcomes. DHS will need to attend to the specific problems identified above if the practice of using shelters for young children is to be stopped altogether.
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Performance for Children Ages Six to 12 and Ages 13 and Older, Shelter Metrics 5.3 and 5.4

DHS continues to struggle with achieving the same type of major reductions in child-nights for children ages six and older as it has for children under age six. In fact, for this reporting period though there was some decline in the number of child-nights for children ages six to 12 years old, the number of child-nights for children ages 13 and older continued to trend negatively upward and well above the baseline (22 percent above) as shown in Table 5.

Table 5: Child-Nights in Shelters by Age, July to December 2014 and Change from Baseline

Child-Nights in Shelters by Age 0 to 1 2 to 5 6 to 12 13 & Older TOTAL

Baseline (Jan 2012-June 2013)
2,923 8,853 20,147 20,635 52,558

Performance (July 2014-Dec 2014 )
505 2,689 18,631 25,108 46,933

Change (n)
-2,418 -6,164 -1,516 4,473 -5,625

Change (%)
-83.0% -70.0% -8.0% 22.0% -11.0%

Shelter Metric 5.3 – Children Ages Six to 12

DHS did make some progress in terms of total shelter-nights for children ages 6-12 since the last report period, but the progress is not substantial (18,631 shelter-nights) compared to the starting baseline of 20,147 child-nights, which represents only an eight percent reduction.

Figure 13: Metric 5.3 – Shelter-Nights, Children Ages 6 - 12

25,000 20,000

20,147

23,127

22,288

18,631

15,000

10,000

5,000

0 Baseline

Jan - 14

Jul - 14

Jan - 15 Source: DHS Data

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Shelter Metric 5.4 and Pinnacle Plan Commitment 1.17 – Youth 13 and Older
DHS’ Pinnacle Plan did not contemplate that shelter usage would be completely eliminated during the implementation of DHS’ reform efforts under the CSA. However, DHS did commit under the Pinnacle Plan (Point 1.17) that by June 30, 2014, the state would place children ages 13 and older in a shelter only if a family-like placement is not available to meet their needs; and further, would not place any child in a shelter more than one time within a 12-month period and for no more than 30 days in any 12-month period.
Since the last report period, the number of child-nights in shelters for children ages 13 and older has increased to 25,108 and, as mentioned, remains substantially above the starting baseline of 20,635 child-nights for this older age group.
Figure 14: Metric 5.4 – Shelter-Nights, Children Ages 13 and Older

30,000 25,000 20,000

20,635

25,342

24,935

25,108

15,000

10,000

5,000

0 Baseline

Jan-14

Jul-14

Jan-15 Source: DHS Data

During this six-month review period, DHS for the first time is reporting its performance against the Pinnacle Plan 1.17 Metric as shown in Table 6 below. Also during this reporting period, DHS and the Co-Neutrals established the baseline for this metric, which is based on the previous sixmonth reporting period, January 2014 through June 2014 (see Table 6 ).
By June 30, 2015, DHS committed to an interim target21 of ensuring 80 percent of children ages 13 and older would meet the Pinnacle Plan 1.17 commitment. DHS’ baseline showed that 200 (33.7 percent) of the 593 children ages 13 and older with an overnight shelter stay from January

21 The final target for this metric (1.17) is 90 percent of children meeting the commitment by June 30, 2016.
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to June 2014 were compliant with Pinnacle Plan 1.17, having had no more than one shelter stay and/or no more than 30 nights in a shelter over a 12-month period. For the following sixmonth performance period, DHS’ compliance with Pinnacle Plan 1.17 moved downward with only 166 (29.6 percent) out of 561 children ages 13 and older meeting the more limited shelter stay commitment of Pinnacle Plan 1.17.
Table 6: Baseline and Performance, Pinnacle Plan 1.17

Performance Categories

Baseline

Current Performance

Jan – June 2014 July – Dec 2014

Children Age 13+, with a shelter stay of at least 1 day 593 100.0% 561 100.0%

Shelter Placements Compliant with Pinnacle Plan 1.17

Those with 1 stay, less than 31 days

200 33.7% 166 29.6%

Compliant TOTAL

33.7%

29.6%

Shelter Placements Not Compliant with Pinnacle Plan 1.17

Those with 1 stay, 31 or more days

136 22.9% 149 26.6%

Those with 2 or more stays, less than 31 days

74

12.5%

56 10.0%

Those with 2 or more stays, 31 or more days

183 30.9% 190 33.9%

Not Compliant TOTAL

66.3%

70.5%

While the interim target for Pinnacle Plan 1.17 is not due until June 30, 2015, the Co-Neutrals continue to be concerned with the high number of older children placed in shelters. In the last Commentary, the Co-Neutrals observed that DHS presented no strategic vision for how shelters, foster homes, group homes and other residential programs should interact and support each other to best transition children to placements that meet their needs along a continuum. This remained true through the end of this review period. Given this gap and the ongoing high number of shelter-nights for older children, the Co-Neutrals do not find that DHS has made good faith efforts to achieve substantial and sustained progress to reduce shelter stays for children in DHS custody who are ages six and older (shelter Metrics 5.3 and 5.4).
The Co-Neutrals’ review of shelter authorization forms during this period found that developing a sufficient supply of TFC placements, and ensuring those homes do not remain vacant, will be critical to reductions in shelter utilization. Many children and youth in the shelters have the types of therapeutic needs that should make them eligible for TFC placements. The Co-Neutrals have asked DHS to analyze why there are so many children on the TFC waiting list (up to 180) and a similar number (185) of open TFC beds. This is particularly relevant to the growing number of older youth placed in shelters who may be served best in a TFC home.

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One core strategy identified by DHS in regards to older youth placed in shelters is the development of more group home beds. It would be premature for DHS to develop new group homes before it has a better understanding why so many of its TFC beds are vacant. In addition, DHS needs a better understanding of the needs of its youth in group care. A report just released by the federal Children’s Bureau reported that 40 percent of the children and youth in group care have no “clinical indications” for higher levels of care like group homes or residential treatment centers.22 This is not to say that group care could not be helpful for youth with specialized needs, but DHS should have a better understanding of the needs of its population before developing new group settings. It is possible, for example, that DHS needs specialized TFC homes for children with a variety of special needs, such as, youth who are medically fragile; have intellectual disabilities; are teen parents; or have gender identity issues that require specialized support. The incongruity between the waiting list and the number of open TFC beds in Oklahoma needs immediate attention.
Shelter Environment
Given the ongoing high number of older youth in shelters, the Co-Neutrals began to review incident reports for children in the two state shelters. The incident reports are completed when a child requires medical attention and/or is involved in a situation that involves medical treatment, a loss of privileges or the use of restraints. For this period, the Co-Neutrals reviewed 177 incident reports. As noted in the Co-Neutrals’ last Commentary, these reports paint a picture of non-therapeutic residential settings that are ill-equipped to care for children experiencing trauma and/or with other special needs.
As noted above, DHS has now decided to close its state shelters, which will address some of these issues. However, given the prevalence of shelter placements and that child-nights for older children is much higher than contemplated by the CSA and the Pinnacle Plan, DHS will also need to address this trend immediately, in collaboration with both its public and private shelter providers.
D. Child Maltreatment in Care (MIC)
Section 2.10 of the CSA requires DHS to reduce abuse and neglect of children in its custody, which Oklahoma tracks and reports by the number of children abused or neglected in two distinct categories, based on the type of perpetrator. The first (Metric 1a) consists of alternative caregivers: a foster parent, therapeutic foster parent, kinship parent, or institutional staff person (all referred to as resource caregivers). The second (Metric 1b) involves abuse or neglect
22 A National Look at the Use of Congregate Care in Child Welfare, U.S. Department of Health and Human Services, Administration for Children’s Services, Children’s Bureau, March 2015.
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by a parent while the child is in DHS’ custody. Child Safety: Abuse and Neglect by Resource Caregivers While Child is in the Legal Custody of DHS, Metric 1a With regard to the first measure, DHS and the Co-Neutrals agreed DHS would improve safety for children in care using two indicators. First, DHS tracks and reports publicly the number of children abused or neglected by a resource caregiver on a monthly basis. Second, DHS and the Co-Neutrals adopted the widely used federal metric, “Absence of Child Abuse and/or Neglect in Foster Care,” which represents the percent of all children in foster care during a 12-month period who were not victims of substantiated maltreatment by a foster parent or facility staff. 23 For this metric’s report period, which covers the 12 months of October 2013 through September 2014, DHS reported that 206 children out of 16,272 in DHS custody were victims of child maltreatment. Applying the federal metric, this represents a rate of 98.73 percent of children in DHS custody during this period who were not victims of child maltreatment. For DHS to have met the Target Outcome of 99.68 percent children in custody absent of child maltreatment, DHS would have had to keep an additional 154 children safe from abuse and neglect by a resource caregiver. During the baseline period, April 2013 to March 2014, DHS served 15,806 children and youth, and determined 200 children had been maltreated by a resource caregiver, for a rate of 98.73 percent, the same as the current report period.
23 In October 2014, the federal Children’s Bureau changed the metric it uses to assess state child welfare efforts to reduce maltreatment in care. The new federal metric combines maltreatment in care by resource caregivers and by parents, with some additional adjustments to the methodology. For consistency and comparability, the CoNeutrals will continue to use the two metrics listed here in their reporting.
38

Figure 15: Metric 1a - Absence of Maltreatment in Care by Resource Caregivers

100% 99% 98% 97% 96% 95% 94% 93% 92% 91% 90%

98.73%

98.73%

Baseline (April 2013 March 2014)

Oct 2013 - Sept 2014

99.68%
Target Source: DHS Data

In addition to publicly reporting performance on this federal metric semi-annually, DHS publicly reports substantiations of child maltreatment in their monthly data. Over the same 12-month period, October 1, 2013 to September 30, 2014, DHS reported 26024 substantiations of child abuse and neglect. Of these, 54 substantiations are not included in the federal metric adopted by the Co-Neutrals as Measure 1a for two reasons: (1) 52 cases of child abuse or neglect were excluded because, according to the federal methodology, both the referral date (date when an allegation is made to DHS) and findings date (date when the case is substantiated by DHS) must exist in the same 12 month reporting period; and (2) two cases were not counted in the federal metric because they represent multiple substantiations for the same child.

During the period, the Co-Neutrals commenced a case record review of all 24725 abuse and neglect substantiations by a resource caregiver that DHS initially reported in its monthly MIC data for the current 12-month reporting period and encouraged DHS to do the same to identify areas for improvement in child safety. That review continued after the reporting period and will forge the basis of discussions between the Co-Neutrals and the parties in the Spring of 2015. In future Commentaries, the Co-Neutrals will evaluate DHS’ efforts to achieve the Target Outcomes to protect children in custody from abuse and neglect, based on DHS’ analysis of data and information, including trends, patterns and practice issues surfaced by DHS and, separately, by the Co-Neutrals in the case record review. The Co-Neutrals have advised DHS to

24 A rollup of DHS’ monthly data shows 247 substantiations of abuse and neglect of children in DHS custody. However, the total number of substantiations used in the Co-Neutrals’ analysis is 260; 14 substantiations were not included in the monthly data due to data lag and other programmatic reasons but were eventually reported by DHS in the data submitted to the federal government. 25 See footnote 20 above.

39

develop a core strategy plan to improve child safety, which DHS plans to submit in the Spring of 2015. The Co-Neutrals are reserving judgment on DHS’ efforts to achieve substantial and sustained progress in this performance area and will report on DHS’ efforts to implement its core strategy plan in the October 2015 Commentary.
Child Safety: Abuse and Neglect by Parents While Child is in the Legal Custody of DHS, Metric 1b
The Co-Neutrals adapted the methodology utilized in the preceding section, Abuse and Neglect by Resource Caregivers, to measure abuse and neglect by parents while a child is in the legal custody of DHS. This includes the significant population of children who remain the legal responsibility of DHS but who reside in, or have been placed back in, their homes of origin for trial home visits. In Oklahoma, children can experience trial home visits for months, and DHS recognizes the importance of closely monitoring their safety.
This metric for “Abuse and Neglect by Parents While Child is in the Legal Custody of DHS,” measures performance this way: Of all children in the legal custody of DHS during the reporting period, the number and percent of children who were not victims of substantiated or indicated maltreatment by a parent and the number of children who were victims over the 12-month period.
For the previous period, April 2013 to March 2014, DHS served 15,806 children in custody, 220 of whom had parents who abused or neglected them while in DHS custody, yielding a performance rate of 98.57 percent. DHS reports that for this 12-month report period, October 2013 through September 2014, there were 25426 children who were maltreated by their parents while in DHS custody. This represents a performance rate of 98.44 percent for this period against a target of 99 percent. For DHS to have reached the target during this period, the agency would have had to prevent maltreatment for an additional 92 children.
26 DHS reported in its federal submission data that 259 children in custody were maltreated by a parent. Data errors in the records of five of these 259 children resulted in over-reporting.
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Figure 16: Metric 1b - Absence of Maltreatment in Care by Parents

100% 99% 98% 97% 96% 95% 94% 93% 92% 91% 90%

98.56%

98.37%

98.57%

98.44%

Baseline

Oct 12 - Sept 13 April 13 - March 14 Oct 13 - Sept 14

Oct 11 - Sept 12

99.00%
Target
Source: DHS Data

In DHS’ monthly-reported data for this 12-month period, DHS shows an additional 87 substantiations of maltreatment of children by their parents while in DHS custody. These 87 substantiations are not included among the 254 children reported in the federal measure because of the federal exception applicable in Metric 1a that both the referral date (date when an allegation is made to DHS) and findings date (date when the case is substantiated) must exist in the same 12-month reporting period.
The Co-Neutrals have advised DHS to develop a core strategy plan to improve child safety, which DHS plans to submit in the Spring of 2015. The Co-Neutrals are reserving judgment on DHS’ efforts to achieve substantial and sustained progress in this performance area and will report on DHS’ efforts to implement its core strategy plan in the October 2015 Commentary.
E. Caseworker Visitation
DHS understands that regular visits between children and caseworkers are important to protect children, give them an opportunity to ask questions, communicate concerns, and contribute to their case plans. A key element of permanency practice involves face-to-face time between the critical participants in a child welfare case. There is a substantial body of data and research demonstrating that more frequent visits with caseworkers, parents, and siblings improve safety, permanency, and well-being for children in care.27 Regular visits by the same caseworker to the
27 United States Children’s Bureau (2003). Relationship between caseworker visits with children and other indicator ratings in 2002 cases; Child Welfare Information Gateway, Sibling Issues in Foster Care and Adoption (December 2006). The importance of caseworker visitation with children in foster care has also been recognized by Congress
41

same child are associated with faster permanency, building relationships between caseworkers, children and caregivers, and providing benchmarks to assess children’s safety and well-being from visit to visit. The CSA includes two performance areas related to caseworker visits (CSA Section 2.10): the frequency of caseworker visits, which is defined as the number of required monthly visits completed with children in care; and, continuity of visits by the same caseworker. For frequency of visits, the Metrics Plan establishes that DHS will report the following:
3.1: The percentage of the total minimum number of required monthly face-toface contacts that took place during the reporting period between caseworkers and children in foster care for at least one calendar month during the reporting period. 3.2: The percentage of the total minimum number of required monthly face-toface contacts that took place during the reporting period between primary caseworkers and children in foster care for at least one calendar month during the reporting period. Regarding Metric 3.1, DHS reported that caseworkers made 124,355 (96.6 percent) out of 128,745 required visits with children during the reporting period of January 1, 2014 to December 31, 2014. The baseline for DHS’ performance was an already strong 95.5 percent of all required visits made. DHS showed improved performance when it last reported in July 2014 that its staff had completed 96.3 percent of all required visits for the period July 1, 2013 to June 30, 2014. This most recent report period indicates even further progress.
in the Child and Family Services Improvement Act of 2006, Pub. L. 109-288 (2006), which requires that child welfare agencies ensure that caseworkers visit at least 90% of children in foster care monthly by 2011.
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Figure 17: Metric 3.1 - Frequency of Visits by All Workers

100% 98% 96% 94% 92% 90% 88% 86% 84% 82% 80%

95.5% Baseline

95.7% Jan-14

96.3% Jul-14

96.6% Jan-15

Source: DHS Data

In focus groups with workers and supervisors, the Co-Neutrals have heard that visits are a priority and that workers feel strongly that they must see the children on their caseload once per month. This continues to be a strength of the system and the Co-Neutrals conclude that DHS has made good faith efforts to achieve substantial and sustained progress with the Target Outcome for Metric 3.1.
The second indicator, Metric 3.2, includes only visits made by primary caseworkers. DHS decided in its Pinnacle Plan to end the use of secondary workers across the state by January 2014; however, as noted in previous commentaries, the Co-Neutrals approved DHS’ request to stagger implementation of this commitment until January 1, 2015.
DHS reported that primary workers made 99,358 visits with children out of 128,745 required monthly visits, which represents 77.2 percent of all required visits during the reporting period of January 1, 2014 to December 31, 2014. For monthly visits conducted by primary workers only, the baseline for DHS’ performance was 51.2 percent and the interim target due for FFY2014 is 70 percent.28

28 Nine of the twelve months of this reporting period, covering January 1, 2014 to December 31, 2014, fell within FFY2014, for which the interim target is 70 percent. For December 2014, the last month of this reporting, DHS reported its performance at 81.0 percent.
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Figure 18: Metric 3.2 - Frequency of Primary Worker Visits

100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

51.2% Baseline

74.1% Jan-14

76.0%

77.2%

Jul-14

Jan-15 Source: DHS Data

DHS has continued to trend positively in this performance area, which reflects DHS’ successful implementation of its commitment to end the use of secondary workers. The Co-Neutrals conclude that DHS has made good faith efforts to achieve substantial and sustained progress with the Target Outcome for Metric 3.2.
Performance Metrics for Continuity of Visits, Metrics 3.3a and 3.3b
The metric the Co-Neutrals use to assess Oklahoma’s progress on continuity of children’s visits with the same caseworker is staged in two phases: first assessing continuity of visits over three months (Metric 3.3a) and then over six months (Metric 3.3b). For the period from January 1, 2014 to December 31, 2014, the Co-Neutrals use a metric that measures continuity over a three-month period:
3.3a: The percentage of children in care for at least three consecutive months during the reporting period who were visited by the same primary caseworker in each of the most recent three months, or for those children discharged from DHS legal custody during the reporting period, the three months prior to discharge.
The Co-Neutrals established that DHS’ baseline performance for this metric was 53 percent and set a target of 75 percent by December 31, 2014. DHS reported that between July 1, 2014 and December 31, 2014, there were 10,250 children in DHS custody who required at least three consecutive visits. Of these 10,250 children, 6,640 (64.8 percent) were visited by the same primary caseworker in their most recent three months in care. This data shows progress over

44

the performance data DHS reported for the previous six months when 57.8 percent of children had three consecutive visits with the same primary worker.
Figure 19: Metric 3.3a - Continuity of Worker Visits by Primary Workers

100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

53.0% Baseline

57.8%

64.8%

Jul-14

Jan-15 Source: DHS Data

Although DHS did not reach the 75 percent target for this metric by December 31, 2014, the CoNeutrals understand that DHS’ improved performance from 53 to 64.8 percent in one year represents, again, DHS’ commitment to complete child visits and reduce its case assignments to secondary workers. The Co-Neutrals find that DHS has made good faith efforts to achieve substantial and sustained progress for this first phase of the continuity of visits metric.
DHS, in its next semi-annual data report, will present performance data on the second phase of the continuity of visits metric (3.3b), which will assess the number of children with consecutive monthly visits with the same primary caseworker over a six-month period. Moving forward, this six-month continuity metric replaces the first phase of this metric (3.3a) that reviewed a three-month period of visits.
During this performance period, DHS and the Co-Neutrals established the baseline and target for the six-month continuity of visits metric. For the period of July 1, 2013 to June 30, 2014, DHS reported a baseline of 40.6 percent and the Co-Neutrals approved a final target of 65 percent.
As DHS continues to work toward improving caseloads and ending the use of secondary workers – except in limited, supervisor approved cases – the Co-Neutrals anticipate that DHS will continue to report progress with all its metrics for caseworker visits. As DHS reduces its caseloads, the Co-Neutrals also expect that DHS will work to improve the quality of caseworker visits.
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Caseworkers and supervisors have expressed to the Co-Neutrals that while completing visits is a priority, their high caseloads frequently limit their time with children, parents, foster parents or group home staff. Both caseworkers and supervisors readily admit that they will need longer visits to ensure that visits are used to thoroughly review any issues of concern and to establish a relationship with the children, birth parents/guardians and foster parents or other substitute caretakers on their caseloads (such as group home staff). The Co-Neutrals are undertaking a review of DHS case records that includes an assessment of the quality of caseworker visits as one area of case practice, among several, that are used to ensure the safety and well-being of children in care. The Co-Neutrals have shared with DHS their findings from this review in order to conduct a joint assessment of the records and will report on findings in the next Commentary.
F. Placement Stability
The CSA requires that DHS establish performance targets to provide stability of placements for children in DHS custody (CSA Section 2.10) and reduce the number of times a child moves to a new placement while in DHS custody. It is widely understood and reported that placement instability causes trauma for children and is associated with increased behavioral challenges and poor educational and health outcomes, and longer waits to permanency.
Performance Standards
The Co-Neutrals and DHS agreed to use the federal Adoption and Foster Care Reporting System (AFCARS) files and definitions for placement moves to measure children’s placement stability. This report reviews performance data for the period October 1, 2013 to September 30, 2014 for Metrics 4.1 (a through c) and 4.2.
Performance Outcomes
DHS understands the importance of a child’s first placement being the best placement to support placement stability and that this approach requires DHS to establish and maintain a robust continuum of care (foster homes, TFCs and higher levels of care such as group homes) to meet the diverse needs of children in DHS’ custody. Achieving stable placements also requires caseworkers to have manageable caseloads, so they have the time needed to focus on the children and foster families who depend on their support.
For this reporting period, DHS continues to show some improvements for Metrics 4.1 a, b and c as noted in Table 7 below. These metrics report on the number of children who experience two or fewer placements at different lengths of time in DHS custody (e.g., 12, 24 or 36 months). For Metric 4.2, as well, DHS achieved some small improvements over the starting baseline (from 74
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to 77.7 percent) – despite a slight decline in performance in this report period compared to the last (from 78 to 77.7 percent).

Table 7: Placement Stability Baselines, Targets, and Current Performance

Metric

Baseline Oct 2011 Sept 2012

Target June 30, 2016

Performance Performance Oct 2012 – April 2013 – Sept 2013 March 2014

Performance Oct 2013 – Sept 2014

4.1(a): percent of children in custody with 2 or fewer placements who are in care less than 12 months 4.1(b): percent of children in custody with 2 or fewer placements who are in care more than 12 months but less than 24 months 4.1(c): percent of children in custody with 2 or fewer placements who are in care at least 24 months 4.2: percent of children in care more than 12 months, with 2 or fewer placements after their 12 months in care

70.0%
50.0%
23.0%
74.0% (Apr.‘12– Mar.‘13)

88.0% 68.0% 42.0% 88.0%

72.9% 50.8% 24.8% 76.5%

74.4% 52.3% 26.0% 78.0%

76.1% 54.0% 27.5% 77.7%

While DHS is trending positively for these metrics, the level of improvement is not yet substantial. The Co-Neutrals have advised DHS to move with a sense of urgency to develop a core strategy plan, which DHS plans to submit in the Spring of 2015. The Co-Neutrals are reserving judgment on DHS’ efforts to achieve substantial and sustained progress in this performance area and will report on DHS’ efforts to implement its core strategy plan in the October 2015 Commentary.

G. Permanency

Children and youth in the child welfare system need and deserve loving and permanent families to keep them safe and to support their emotional, physical and social development. When DHS removes a child from their family due to abuse and/or neglect, the agency establishes a permanency case goal for the child. For most children, reunification, adoption or guardianship is the child’s permanency goal and DHS develops individualized case plans designed to achieve timely permanency for all children in the state’s custody. In the Pinnacle Plan, DHS also committed to implement targeted strategies for children who experience permanency challenges. This includes youth who are legally free for adoption but are at risk of exiting foster care without a permanent family, children who are legally free without an identified adoptive placement, children and youth in congregate care and children with a goal of reunification who remain in foster care without permanency. DHS’ recent data analysis shows children with disabilities, as well as older youth, are more likely to experience longer lengths of stay. Given this, it is imperative that DHS target its efforts to support these groups of children.
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Since the beginning of DHS’ reform efforts, the Co-Neutrals have encouraged DHS to sequence its implementation of the Pinnacle Plan with an initial, intense focus on three performance areas – reducing caseloads so that staff have the time and capacity to care for children; increasing the supply of foster and therapeutic foster homes so that children who have been removed from their families have safe and appropriate places to live; and reducing the use of shelter placements for children. At this point in the reform process, DHS should be as intensely focused on achieving timely permanency for children consistent with the Metrics Plan as with all other elements of the reform work.
In recent discussions, the Co-Neutrals encouraged DHS leadership to evaluate the many Pinnacle Plan permanency commitments and, from these commitments, adopt a set of core strategies DHS leadership believes will result in improved timely permanency outcomes for children in its custody. DHS agreed to do so and is expected to submit a core strategy plan to the Co-Neutrals in the Spring of 2015. DHS’ performance trended negatively for most of the permanency measures. However, the Co-Neutrals reserve judgment on DHS’ efforts to achieve substantial and sustained progress toward the permanency Target Outcomes in this reporting period for eight of the ten permanency measures.29 The Co-Neutrals will afford DHS additional time, through June 30, 2015, to demonstrate its adoption and effective implementation of core strategies to achieve substantial and sustained progress toward the permanency Target Outcomes.
Permanency Performance
Legally Free Children without an Adoptive Family on January 10, 2014, Metric 6.1
DHS, under Metric 6.1, is responsible to move an identified cohort of legally free30 children and youth without an identified family to permanency expeditiously. DHS’ strategy to achieve permanency for the cohort was to allocate additional adoption staff throughout the state to convene permanency case review conferences. The purpose of the reviews is for permanency and adoption staff to review the child’s case plan, and to identify barriers to permanency. Action plans to resolve the barriers for individual children are then developed, and both adoption and permanency staff are responsible for advancing, tracking, and monitoring progress. DHS reported that it continued to utilize this targeted, child-specific review process throughout the reporting period and will continue to do so moving forward.
29 For one of the ten permanency measures, Metric 6.1, the Co-Neutrals are evaluating performance using the Target Outcomes set for two separate age groups established for the identified point-in-time legally free cohort. 30 These are children and youth whose parents rights have been legally terminated by the Court.
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DHS and the Co-Neutrals established a point-in-time cohort of 292 children who were legally free for adoption as of January 10, 2014, and who did not have an identified adoptive placement. On June 10, 2014, the Co-Neutrals established permanency targets for these children and youth as follows:
 By June 30, 2016, 90 percent of the 207 children who were ages 12 and under on January 10, 2014 will achieve permanency.
 By June 30, 2016, 80 percent of children who were ages 13 and over on January 10, 2014 will achieve permanency.
DHS reported that 47 (22.7 percent) of the 207 children in the younger segment of the cohort (ages 12 and under) achieved permanency as of January 1, 2015. This is an increase of 30 children since August 15, 2014 when DHS last reported to the Co-Neutrals that 17 children had achieved permanency. For this younger segment of the cohort, the Co-Neutrals find that DHS has made good faith efforts to achieve sustained, positive trending toward the Target Outcome. For the 85 youth in the older group (ages 13 and older), DHS reported that a total of eight children achieved permanency as of January 1, 2015, an increase of six children since August 15, 2014. DHS also reported that as of December 31, 2014, six children in the older age group of the cohort have aged out of custody without achieving permanency. Given the low number of children who are moving to permanency in this older segment of the cohort, as well as the number of children aging out, DHS will need to expand its permanency strategies to ensure the children in this age group achieve permanency. The Co-Neutrals do not find that DHS has made good faith efforts to achieve substantial and sustained progress toward the Target Outcome for the older segment of the legally free cohort identified for Metric 6.1. DHS reported that an additional 30 children placed in adoptive homes were in trial adoption status on January 1, 2015, a sign that more children should achieve permanency in upcoming months. The Co-Neutrals will report on these permanency outcomes and the distribution across the two age groups in the October 2015 Commentary.
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Table 8: Permanency Performance for Metric 6.1

Permanency Metric
6.1: Of all legally free children not in an adoptive placement on 1/10/14, the number who have achieved permanency.

Baseline
207 childrenAge 12 and under 85 childrenAge 13 and older

Permanency Target by
June 30, 2016 90%
80%

Permanency Achieved as of August 15, 2014
17 children (8.2%) achieved permanency 2 children (2.4%) achieved permanency

Permanency Achieved as of January 1, 2015
47 children (22.7%) achieved permanency 8 children (9.4%) achieved permanency

Final Target Outcomes for this cohort of children are set to be achieved by June 30, 2016, and there are no interim performance targets. The progress made thus far by DHS is encouraging, particularly for children ages 12 and younger, and the Co-Neutrals look forward to discussing in the next Commentary DHS’ ongoing efforts on behalf of children and youth in the cohort.
Timeliness of Children’s Permanency, Metrics 6.2 (a-d)
Metrics 6.2 (a-d) measure DHS’ progress in achieving timely permanency for children who entered foster care at a designated time and who achieved permanency in 12, 24, 36 or 48 months from the child’s removal from their family. In three (6.2 a, b and c) of the four 6.2 metrics for timeliness to permanency, DHS is trending negatively with the remaining metric (6.2d) showing some recent improvement. The following Figures detail the baselines, performance to date and targets for the achievement of timely permanency for children in DHS’ custody.

Metric 6.2a, Permanency within 12 months of removal: DHS reported that of the 2,901 children who entered foster care between April 1, 2013 and September 30, 2013, 818 children achieved permanency within 12 months of their removal date. This represents a permanency achievement rate of 28.2 percent for Metric 6.2a – the Target Outcome is 55 percent. The goal is for DHS to achieve a higher outcome number for this metric. With the baseline set at 35 percent, DHS’ performance has trended negatively and below the baseline for three consecutive reporting periods.

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Figure 20: Metric 6.2a - Permanency within 12 Months of Removal

60%

50%

40%

35.0%

30%

20%

10%

0%

31.8%

28.9%

28.2%

55.0%

Source: DHS Data
Metric 6.2b, Permanency within two years of removal: DHS reported that of the 1,787 children who entered foster care between April 1, 2012 and September 30, 2012 and stayed in foster care for at least 12 months, 669 children achieved permanency within two years of their removal date. This represents a permanency achievement rate of 37.4 percent for Metric 6.2b – the Target Outcome is 75 percent. The goal is for DHS to achieve a higher outcome number for this metric. With the baseline set at 43.9 percent, DHS’ performance has trended negatively, as performance was consistently below and further from the baseline in each reporting period.

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Figure 21: Metric 6.2b - Permanency within 2 years of Removal

80%

70%

60%

50%

43.9%

40%

30%

20%

10%

0%

41.0%

38.8%

37.4%

75.0%

Source: DHS Data
Metric 6.2c, Permanency within three years of removal: DHS reported that of the 924 children who entered foster care between April 1, 2011 and September 30, 2011 and stayed in foster care for at least 24 months, 346 children achieved permanency within three years of their removal date. This represents a permanency achievement rate of 37.4 percent for Metric 6.2c – the Target Outcome is 70 percent. With the baseline set at 48.5 percent, performance is trending negatively with DHS reporting three consecutive performance outcomes that represent a decrease from the previously reported data. The goal is for DHS to achieve a higher outcome number for this metric. All three performance outcomes DHS has reported to date for Metric 6.2c have been below the baseline.

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Figure 22: Metric 6.2c - Permanency within 3 years of Removal

80% 70% 60%
48.5% 50% 40% 30% 20% 10%
0%

46.9%

43.7%

37.4%

70.0%

Source: DHS Data

Metric 6.2d, Permanency within four years of removal: DHS reported that of the 359 children who entered foster care between April 1, 2010 and September 30, 2010 and stayed in foster care for at least 36 months, 141 children achieved permanency within four years of their removal date. This represents a permanency achievement rate of 39.3 percent for Metric 6.2d – the Target Outcome is 55 percent. As shown in Figure 23 below, DHS has shown mixed performance in the last three reporting periods. The goal is for DHS to achieve a higher outcome number for this metric. With the baseline set at 46.6 percent, DHS reported that its performance for this period is below the baseline. However, performance improved from the last reporting period when 32.7 percent of children in the cohort achieved permanency.

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Figure 23: Metric 6.2d - Permanency within 4 years of Removal

60%

50%

46.6%

40%

30%

20%

10%

0%

48.5%

32.7%

39.3%

55.0%

Source: DHS Data
DHS has acknowledged there have been significant challenges to improved permanency practice due to the increase in the number of children in care, high worker caseloads, worker turnover, and the lack of placement resources for children in DHS’ custody. DHS has also acknowledged that progress in reducing worker caseloads and in developing an increased pool of foster home and TFC placements are directly linked to better permanency outcomes for children and youth.
Children’s re-entry to foster care within 12 months of exit, Metric 6.3
Metric 6.3 measures how well DHS ensures that children who achieve permanency remain with their permanent family and do not re-enter foster care in a short period of time. Specifically, Metric 6.3 measures re-entry to foster care within 12 months of a child’s discharge to permanency (not including adoption) in the 12-month period prior to the reporting period.
The baseline for this metric is 10.3 percent of children re-entering care; the final target set for June 30, 2016 is no more than 8.2 percent of children re-entering care. For this period, DHS reported that of the 2,638 children who discharged to permanency (not including adoption) between October 1, 2012 and September 30, 2013, 225 children re-entered care within 12 months, which represents 8.5 percent of child re-entries. DHS’ performance has trended positively with respect to this permanency metric, as performance moved closer to the final Target Outcome in each of the reporting periods.

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Figure 24: Metric 6.3 - Re-entry within 12 Months of Exit

12%

10.3%

10%

8%

6%

4%

2%

0%

10.0%

9.4%

8.5%

8.2%

Source: DHS Data

Permanency for Older Legally-Free Youth, Metric 6.4
This metric measures the experience of a cohort of legally free youth who turned 16 years of age within two to three years before the report period and tracks those children to measure the percentage of these youth who exited foster care to permanency by age 18, the percentage who remain in care after age 18, and the percentage who exit care without permanency. The interim and final Target Outcomes for this metric are set only for the percentage of youth who will achieve permanency, while the other outcomes of youth exiting care without permanency or remaining in care are publicly reported to provide transparency into the overall experience of these youth.
DHS’ baseline for this permanency metric was set at 30.4 percent of youth exiting with a permanent family. Two interim targets were set, the first of which is 50 percent of youth exiting to permanency by December 31, 2014, and the second with 75 percent exiting to permanency by December 31, 2015. The final target is set at 80 percent by June 30, 2016.
For this period, DHS reported that 148 legally free children turned 16 years old between October 1, 2011 and September 30, 2012. Thirty-seven of these children, representing 25 percent, achieved permanency as follows:
 Twenty-four were adopted;  Ten exited through guardianship;  Two were reunified with their families; and  One youth exited through custody to a relative.
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Of significant concern to the Co-Neutrals, 92 (62.2 percent) of the 148 youth in the cohort exited the state’s custody without permanency. Nineteen youth (12.8 percent) remained in care on the last day of the reporting period.

As shown in the table below, performance outcomes have been below the baseline in all three reporting periods and fall well-short of the 50 percent interim permanency target established for December 31, 2014.

Table 9: Permanency Performance for Metric 6.4

Permanency Metric
6.4: Among legally free foster youth who turned 16 in the period 24 to 36 months prior to the report date the percent that: exited to permanency by age 18; stayed in foster care after age 18; and, exited without permanency by age 18.

Baseline
30.4% (July ‘09-June
‘10)

Reported Jan 2014
20.7%

Reported July 2014
26.9%

Reported Jan 2015
25.0%

Target
50.0% by 12/31/14
75.0% by 12/31/15
80.0% by 6/30/16

One of DHS’ primary strategies to advance permanency for older youth was to convene Permanency Roundtables (PRT) for legally free youth 16 years of age or older who are at risk of aging out of foster care without permanency. The goal of the PRT is to identify barriers to permanency, to engage a team of partners to brainstorm creative solutions to those barriers, and to design an individualized Permanency Action Plan. In July 2013, DHS identified 247 youth to participate in the PRT meeting process. As of March 2015, DHS completed PRT meetings for 143 youth in the cohort.
DHS reported that data collection at the end of each PRT identified three main barriers to achieving permanency for these youth: limited or lost connections to youth’s kin, culture and community; staff turnover; and youth’s behavioral and mental health needs. DHS reported that the data gathered to determine whether or not PRTs have successfully influenced positive permanency outcomes is inconclusive but there is a slight indication of positive improvements of permanency achievement in this population. DHS reported data validity limitations due to:
 Limited responses from workers;  Reduced action plan timeframes due to the age of youth and the risk of youth aging out
before the action plan could be completed;  Inadequacies in the type of data gathered and measurement capacity; and  Staff turnover has affected survey responses and action plan completion.
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DHS leadership reported to the Co-Neutrals that they continue to evaluate PRT implementation to determine the capacity the agency needs to implement the PRT model with fidelity and to determine the populations of children and youth for whom PRT meetings will be utilized on an ongoing basis.

Timeliness to Adoption for Children who become Legally Free, Metric 6.5

Metric 6.5 measures the timeliness to adoption for children who became legally free for adoption in the 12 months prior to the reporting period. The baseline for this metric was established at 54.3 percent with the performance target set at 75 percent. In January 2014, DHS’ first reported performance data for this metric showed DHS’ performance at 60.9 percent – 6.6 percent above the baseline. Since that time, DHS’ performance declined to 55.6 percent in the previous period and 51.9 percent in current period which is below the established baseline. DHS reported that of the 1,618 children who became legally free between October 1, 2012 and September 30, 2013, 839 (51.9 percent) were adopted within 12 months of becoming legally free.

Table 10: Permanency Performance for Metric 6.5

Permanency Metric
6.5: Of children who became legally free in the 12 months before the report period, the percent who were discharged from foster care to a finalized adoption in less than 12 months from the date of becoming legally free.

Baseline 54.3%

Reported Jan 2014
60.9%

Reported July 2014
55.6%

Current Report Jan 2015
51.9%

Target 75.0%

Adoption Permanency, Metrics 6.6, and 6.7
The remaining permanency metrics (6.6 and 6.7) measure how well DHS avoids pre-adoption placement disruptions and post-adoption finalization dissolutions.
Metric 6.6 measures the percentage of adoption placements that do not disrupt over a 12month period, of all trial adoption placements during the previous 12-month period. The baseline for this metric was set at 97.1 percent and the Target Outcome was set at 97.3 percent. DHS’ performance has remained flat and below the baseline across the last three report periods. See Table 11 below. For this reporting period, DHS’ data shows that, of the 1,239 children who entered a trial adoption placement between October 1, 2012 and September 30, 2013, 1,195 children (96.4 percent) did not disrupt within 12 months of entering
57

trial adoption. Forty-four children experienced disruptions in their adoption placements and in order for DHS to have met the Target Outcome for this reporting period, 10 less children would have experienced disruptions in their adoption placements.

Metric 6.7 measures the percentage of children who achieved permanency through adoption over a 24-month period and who did not experience adoption dissolution within 24 months of adoption finalization. The baseline for this metric was established at 99.0 percent and the Target Outcome was set at 99.0 percent. For this reporting period, DHS’ data shows that, of the 2,865 children who were adopted between October 1, 2010 and September 30, 2012, 2,856 children (99.7 percent) did not disrupt within 24 months of being adopted. DHS has consistently exceeded the Target Outcome for both the current and last two performance periods, reporting performance at 99.7 in each period. See Table 11 below.

Table 11: Permanency Performance Metrics 6.6, and 6.7

Permanency Metric
6.6: Percent of adoption placements that did not disrupt over a 12-month period, of all trial adoption placements during the previous 12-month period.
6.7: Percent of children whose adoption was finalized over a 24-month period who did not experience adoption dissolution within 24 months of finalization.

Baseline

Reported Jan 2014

Reported July 2014

97.1% 96.2% 96.4%

99.0% 99.7% 99.7%

Current Report Jan 2015 96.4%
99.7%

Target June 2013 97.3%
99.0%

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Appendix A: Metric Plan Baselines and Targets (Updated February 2015)
Oklahoma Department of Human Services Compromise and Settlement Agreement in D.G. v. Henry

Under Section 2.10(f) of the CSA, the Co-Neutrals shall issue Baseline and Target Outcomes, which shall not be subject to further review by either party but may at the discretion of the Co-Neutrals, after providing the parties an opportunity to comment, be revised by the Co-Neutrals. These Baselines and Target Outcomes are currently in effect.

1. MALTREATMENT IN CARE (MIC) Metric

Reporting Frequency

Baseline

1.A: Of all children in foster care during the reporting period, what Semi-Annually, in the

98.73%

percent were not victims of substantiated or indicated maltreatment January and July monthly

by a foster parent or facility staff member in a 12 month period.

reports

(April 2013 – March 2014)

Target 99.68%

1.A (2): Number of children in the legal custody of OKDHS, found to have been maltreated by a resource caregiver over the 12 month period. 1.B: Of all children in legal custody of OKDHS during the reporting period, what number and percent were not victims of substantiated or indicated maltreatment by a parent and what number were victims.

Monthly
Semi-Annually, in the January and July monthly reports

N/A
98.56% (Oct 2011 – Sept 2012)

1.B (2): Number of children in the legal custody of OKDHS, found to Monthly

N/A

have been maltreated by a parent over the 12 month period.

N/A 99.00%
N/A

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2. FOSTER AND THERAPEUTIC FOSTER CARE (TFC) HOMES

Metric

Reporting Frequency

Target SFY 14

Target SFY 15*

2.A: Number of new foster homes (non-therapeutic, non- Monthly kinship) approved for the reporting period.**

1,197

End of Year: 904 Interim Target: 678 by 3/31/15

Net gain/loss in foster homes (non-therapeutic, non-kinship) Semi-Annually, in the

for the reporting period***

January and July monthly

reports

2.B: Number of new therapeutic foster homes (TFC)

Monthly

reported by OKDHS as licensed during the reporting period.

Net gain/loss in therapeutic foster homes (TFC) for the reporting period.

Semi-Annually, in the January and July monthly reports

(July 1, 2013 Baseline: 1,693) 615
150 (July 1, 2013 Baseline: 530) n/a

(July 1, 2014 Baseline: 1,958) 356
150 (July 1, 2014 Baseline: 473) 56

 By May 30 of each year, DHS shall conduct annual trend analysis to set annual targets for the total number of new homes developed and the net gain for foster and TFC homes needed to meet the needs of children in and entering care. The Co-Neutrals also set an interim target of newly approved homes for the year. ** DHS and the Co-Neutrals established criteria for counting new non-kin foster and TFC homes toward the annual targets set under 2.A and 2.B. *** DHS and the Co-Neutrals established a methodology for counting net gains/losses of non-kin foster and TFC homes.
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3. CASEWORKER VISITS

Metric

Reporting Frequency

3.1: The percentage of the total minimum number of required

Monthly

monthly face-to-face contacts that took place during the reporting

period between caseworkers and children in foster care for at least 1

calendar month during the reporting period.

3.2: The percentage of the total minimum number of required

Monthly

monthly face-to-face contacts that took place during the reporting

period between primary caseworkers and children in foster care for

at least 1 calendar month during the reporting period.

Baseline 95.5% (July 2011-June 2012)
51.2% (July 2011-June 2012)

3.3(a): The percentage of children in care for at least three

Semi-Annually, in the

consecutive months during the reporting period who were visited by January and July monthly

the same primary caseworker in each of the most recent three

reports

months, or for those children discharged from OKDHS legal custody

during the reporting period, the three months prior to discharge.

53% (January - June 2013)

Phase One: for period Jan – Dec 2012

3.3(b): Percentage of children in care for at least six consecutive months during the reporting period who were visited by the same primary caseworker in each of the most recent six months, or for those children discharged from OKDHS legal custody during the reporting period, the six months prior to discharge.

Semi-Annually, in the January and July monthly reports

40.6% (January 2013 – June 2014)

Phase Two: for period Jan 2015 until the end of the Compromise and Settlement Agreement (CSA)

Target 95%
Final: 90% Interim – Last reported month of: FFY 2013 - 65% FFY 2014 - 70% FFY 2015 - 80% FFY 2016 – 90% 75%
65%

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4. PLACEMENT STABILITY

Metric
4.1 (a): Percent of children in legal custody of OKDHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 8 days but less than 12 months, the percentage that had two or fewer placement settings.

Report

Baseline

Frequency

Semi-Annually, in the

70%

January and July monthly

report -same for all

(Oct 2011 – Sept 2012)

placement stability metrics

4.1(b): Percent of children in legal custody of OKDHS that experience two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 12 months but less than 24 months, the percentage that had two or fewer placements.

Same

50% (Oct 2011 – Sept 2012)

4.1(c): Percent of children in legal custody of OKDHS that experience Same two or fewer placement settings: Of all children served in foster care during the year who were in care for at least 24 months, the percentage that had two or fewer placement settings.

23% (Oct 2011 – Sept 2012)

4.2: Of those children served in foster care for more than 12 months, the percent of children who experienced two or fewer placement settings after their first 12 months in care.

Same

74% (Apr 2012 – Mar 2013)

4.3: Of all moves from one placement to another in the reporting N/A

N/A

period, the percent in which the new placement constitutes

progression toward permanency. (Note: the Co-Neutrals have

suspended this metric.)

Target – by June 30, 2016 88%
68%
42% 88% N/A

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5. SHELTER USE

Metric

Report

Frequency

5.1: The number of child-nights during the past six months involving Monthly children under age 2 years.
Analysis of usage every 6 months – same for all

shelter metrics

5.2: The number of child-nights during the past six months involving Same children age 2 years to 5 years.

5.3: The number of child-nights during the past six months involving Same children age 6 years to 12 years.

Baseline (January-June 2012) 2,923 child-nights
8,853 child-nights 20,147 child-nights

5.4: The number of child-nights during the past six months involving Same children age children 13 years or older.

20,635 child-nights

Target
0 by 12/31/12
0 by 6/30/13
0 for children 6-7 by 7/1/14 0 for children 8-9 by 10/1/14 0 for children 10-12 by 1/1/15 unless in a sibling group of 3 or more 0 for children 10-12 by 4/1/15 unless with a sibling group of 4 or more
Interim Target by 6/30/15 # child-nights: 13,200 80% of children 13+ in shelters will meet Pinnacle Plan (PP) Point 1.17 rules
Final Target by 6/30/16 # child-nights: 8,850 90% of children 13+ in shelters will meet PP Point 1.17 rules

 Pinnacle Plan Point 1.17: “By June 30, 2014, children ages 13 years of age and older may be placed in a shelter, only if a family-like setting is unavailable to meet their needs. Children shall not be placed in a shelter more than one time within a 12-month period and for no more than 30 days in any 12-month period. Exceptions must be rare and must be approved by the deputy director for the respective region, documented in the child’s case file, reported to the division director no later than the following business day, and reported to the OKDHS Director and the Co-Neutrals monthly.
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6. PERMANENCY Metric
6.1: Of all children who were legally free but not living in an adoptive placement as of January 10, 201431, the number of children who have achieved permanency.

Report Frequency Semi-Annually, in the January and July monthly reports same for all permanency metrics

Baseline Jan 10, 2014 Cohort 292 children

Target
90% of children ages 12 and under on Jan 10, 2014 will achieve permanency
80% of children ages 13 and older on Jan 10, 2014 will achieve permanency

6.2(a): The number and percent of children who entered foster care 12-18 months prior to the end of the reporting period who reach permanency within one year of removal, by type of permanency.

Same

6.2(b): The number and percent of children who entered their 12th month in foster care between 12-18 months prior to the end of the reporting period who reach permanency within two years of removal, by type of permanency.

Same

6.2(c): The number and percent of children who entered their 24th month in foster care between 12-18 months prior to end of reporting period who reach permanency within three years of removal, by type of permanency.

Same

6.2(d): The number and percent of children who entered their 36th month in foster care between 12-18 months, prior to the end of the reporting period who reach permanency within four years of removal.

Same

Total = 35%
Reunification = 31.4% Adoption= 1.6% Guardianship = 2% Total = 43.9%
Reunification = 22.3% Adoption = 18.9% Guardianship = 2.7% Total = 48.5%
Reunification = 13.0% Adoption = 32.7% Guardianship = 2.9% Total = 46.6% Reunification = 8.8% Adoption = 37.3% Guardianship = .4%

Total = 55% Total = 75% Total = 70% Total = 55%

31 The legally free cohort for Metric 6.1 was to be set originally on March 7, 2013, the date the Metrics Plan was finalized, but due to since-corrected data challenges the cohort was established for January 10, 2014.
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6. PERMENACY Metric
6.3 Of all children discharged from foster care in the 12 month period prior to the reporting period, the percentage of children who re-enter foster care during the 12 months following discharge.

Report Frequency Same

6.4: Among legally free foster youth who turned 16 in the period 24 to 36 months prior to the report date, the percent that exited to permanency by age 18; stayed in foster care after age 18, and exited without permanency by age 18.

Same

6.5: Of all children who became legally free for adoption in the 12 month period prior to the year of the reporting period, the percentage who were discharged from foster care to a finalized adoption in less than 12 months from the date of becoming legally free. 6.6: The percent of adoptions that did not disrupt over a 12 month period, of all trial adoptive placements during the previous 12 month period. 6.7: The percent of children whose adoption was finalized over a 24 month period who did not experience dissolution within 24 months of finalization.

Same
Same Same

Baseline

Target

10.3%

8.2%

Discharged year ending 9/30/11 re-entered as of 9/30/12

30.43%

50% by 12/31/14

(July 2009-June 2010) 75% by 12/31/15

80% by 6/30/16

54.3%

75% by June 30, 2016

(Oct 2011-Sept 2012)

97.1%
(Apr 2008-Mar 2010) 99%

97.3% 99%

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7. CASELOADS Metric
Supervisors
Child Protective Services (CPS) OCA (Office of Client Advocacy) Family Centered Services (FCS) Permanency Foster Care Adoption

Report Frequency Quarterly, every Jan, April, July and Oct – same for all caseloads

Standard 1:5 ratio

Baseline 58.8% (as of June 30, 2014)

Target
90% meet standard by June 30, 2014

Same Same

12 open investigations or assessments Same Baseline for All Case Carrying Workers:
12 open investigations

Same Interim Target for All Case Carrying Workers – by Dec 31, 2013:

Same

8 families

27% - meet standard

45% - meet standard

Same Same Same

15 children 22 families 8 families & 8 children

8% - 1-20% above standard 65% - 21%+ above standard

30% - 1-20% above standard
25% - 21%+ above standard
Final Target: 90% of all workers meet their standard by June 30, 2014

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D.G. vs. Yarborough Case No. 08-CV-074

Appendix B: Remedial Order Remedial Order

Based on the findings of the Co-Neutrals’ Commentaries issued in October 2013, April 2014 and October 2014, and pursuant to Section 2.14 of the D.G. v Yarborough Compromise and Settlement Agreement, the Oklahoma Department of Human Services (DHS) is hereby directed to undertake and maintain the following diagnostic and remedial activities:
1) Foster Homes
a) DHS shall immediately identify systemic barriers that prevented the agency from making substantial and sustained progress toward achieving its new foster home Target Outcome for SFY14.
b) DHS shall review its current core strategies to develop new foster homes, evaluate the effectiveness of those strategies, and ensure that all tools available to DHS to achieve the foster home Target Outcomes are incorporated into a remediation plan.
c) DHS shall develop and submit to the Co-Neutrals by January 10, 2015 a remediation plan, with proposed timeframes, designed to ensure DHS achieves its foster home Target Outcomes for SFY15. The remediation plan shall be subject to the approval of the Co-Neutrals, and upon CoNeutral approval, DHS shall immediately implement the remediation plan.
d) Director Lake shall, by November 30, 2014, identify a senior DHS staff person responsible for continually assessing progress and identifying barriers toward achieving the foster home Target Outcomes. This individual shall serve as the DHS liaison to the Co-Neutrals for all matters related to the foster home performance area.
2) Caseloads
a) DHS shall prepare weekly caseload and position management reports that identify the following for every district office:
i) The number of caseworker positions allocated to the district. ii) The list of caseworkers currently employed (list their caseload carrying capacity under
graduated caseloads – 0%, 25%, 50% and 100%). iii) The caseloads for each caseworker.
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iv) The number of caseworkers (by type) needed to achieve 90 percent caseload compliance based on the previous week’s workload.
v) The number of vacant caseworker positions available to fill. vi) The number of vacant caseworker positions posted to fill. vii) The number of caseworker positions vacated and/or new resignations or transfers
announced during the previous week.
While the primary purpose of the weekly caseload and position management report is for DHS leadership to track progress and manage toward better outcomes, DHS will also submit these reports weekly to the Co-Neutrals. Starting on December 1, 2014, DHS will submit to the CoNeutrals its first weekly report, containing all the data elements listed above for which DHS already has the capacity to report. By February 28, 2015, DHS will provide weekly reports to the Co-Neutrals that include all the data elements set forth above.
b) By January 10, 2015, DHS shall identify a set of priority districts that have the highest needs in terms of caseloads, vacancies and turnover. The priority districts will be identified using criteria proposed by DHS based on a threshold of a percentage of workers who are above the caseload carrying standard, a percentage of vacancies and a rate of turnovers. The Co-Neutrals will review and approve DHS’ proposed criteria and selected list of priority districts. Once the set of priority districts have been identified and approved, DHS shall provide monthly reports to the Co-Neutrals on targeted strategies to hire and retain caseworkers for this priority set of districts. These plans shall include the results of diagnostic assessments of any barriers to hiring and retention in the targeted district offices and strategies to overcome those barriers.
c) DHS shall produce and submit to the Co-Neutrals monthly reports on its plans and progress toward implementing graduated caseloads and the field mentor training program, two core caseload strategies DHS included in the Pinnacle Plan.
d) Director Lake shall identify a senior DHS person responsible for continually assessing the weekly caseload and position management reports to identify barriers (short-term, long-term, local and statewide) and opportunities to achieve substantial and sustained progress toward caseload Target Outcomes. This individual shall serve as the DHS liaison to the Co-Neutrals for all matters related to the caseload performance area. The Co-Neutrals direct that this same person will engage in weekly calls with all District Directors in priority districts and monthly calls with all remaining District Directors related to progress and challenges with caseloads, retention and hiring.
3) Child Protective Services (CPS) Investigation Backlog
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e) DHS shall develop and submit to the Co-Neutrals by December 15, 2014 a remediation plan to reduce its backlog of overdue CPS investigations. The remediation plan shall identify current barriers to DHS’ completing investigations within the required 60-day timeframe and core strategies DHS will employ to reduce the backlog. DHS’ remediation plan will propose interim targets and dates for backlog reduction and a final target date for eliminating the backlog.
f) Director Lake shall identify a senior DHS person responsible for continually assessing progress or negative trending with the backlog reduction and identifying barriers (short-term, long-term, local and statewide) to timely completions of CPS investigations. This individual shall serve as the DHS liaison to the Co-Neutrals for all matters related to the CPS investigation backlog.
This order is effective upon publication which is the date noted below.

By:

Eileen Crummy Co-Neutral

Kathleen Noonan Co-Neutral

Kevin Ryan Co-Neutral

Dated: November 14, 2014

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Appendix C: November 14, 2014 Memorandum regarding Interim Targets
To: Ed Lake and Jami Ledoux From: Eileen Crummy, Kathleen Noonan and Kevin Ryan Date: November 14, 2014 Re: Metrics Plan Revisions As provided for in Section 2.10 (f) of the Compromise and Settlement Agreement, the Co-Neutrals are revising the Metrics, Baselines and Targets Plan (Metrics Plan) to include the following targets and reporting requirements: 2. Therapeutic Foster Care (TFC) homes - Annual Net Gain Target
The Metrics Plan establishes that “OKDHS shall establish targets for licensing new therapeutic homes to be submitted to the Co-Neutrals by May 30th of each year.” The Co-Neutrals require that DHS also establish an annual target for new TFC homes.32
a. For SFY15, the Co-Neutrals establish a net gain target of 56 TFC homes. For future years, DHS will submit to the Co-Neutrals annual net gain targets for TFC homes by May 30th of each year.
b. Beginning in December 2014, DHS will report progress toward achieving the SFY15 net gain target of new TFC homes in its monthly report.
3. Foster Homes33 – Annual Net Gain Target, Monthly Reporting The Co-Neutrals established the SFY15 net gain target of 356 new foster homes. a. Beginning in December 2014, DHS will report progress toward achieving the SFY15 net gain target of new foster homes in its monthly report.
4. Foster Homes – Annual Interim Target and Monthly Reporting
The Co-Neutrals determined that the SFY15 new foster home target is 904 homes. In order to better track DHS’ progress in meeting the annual target, the Co-Neutrals establish an interim SFY15 target.
32 New TFC homes included in the net gain count are subject to the SFY15t Criteria for Counting New Non-Kin Foster and TFC Homes established by DHS and the Co-Neutrals. 33 Non-kinship foster homes
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a. By March 31, 2015, DHS will develop 678 new non-kin foster homes as an interim target for SFY15. For future years, the Co-Neutrals will establish an annual interim target (both date and target number to be determined) for new foster homes, which will be based on the annual target established for that year.
b. Beginning in December 2014, DHS will report progress toward achieving the interim target for new foster homes in its monthly report.
The Co-Neutrals will accept comments from DHS and Plaintiffs before finalizing these revisions to the Metrics Plan. Please provide comments by Friday, November 21, 2014. c Marcia Lowry
Fred Dorwart Ron Baze
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CPS CSA CWS34 CQI DHS FFY LD MIC NCANDS OCA PEM RFP RFP SFY TFC

Glossary 1: Acronyms Child Protective Services Compromise and Settlement Agreement Child Welfare Specialist Department of Human Services Continuous Quality Improvement Oklahoma Department of Human Services Federal Fiscal Year Laura Dester Shelter (state-operated) Maltreatment in Care National Child Abuse and Neglect Data System Department of Human Services Office of Client Advocacy Pauline E. Mayer Shelter (state-operated) Request for Proposals Resource Family Placement State Fiscal Year Therapeutic foster care

34 CWS additionally is the acronym for Child Welfare Services – the agency within DHS that is charged with improving the safety, permanence and well-being of children and families involved in the Child Welfare system.
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