Patrick B. McGuigan
The pending settlement in the case of “DG vs. Yarborough” will likely impact virtually every aspect of operations in child protective services at the Oklahoma Department of Human Services (DHS), an examination of the document and explanatory material reveals.
The accord – awaiting judicial approval – does not mandate increased taxpayer spending, but such seems a likely result. Although distinguishable from a “normal” class action lawsuit settlement in which a jurist directly orders expenditures, millions of dollars, perhaps hundreds of millions, will need to be reallocated within existing expenditures or financed through new appropriations to implement provisions agreed to by state officials, agency leadership and outside litigants.
DHS staff is charged with developing a plan to submit before a panel of “co-neutrals” (three arbiters who selected by the agency and outside litigants, with agreement of the Contingency Review Board) which is intended to implement improvement strategies and anticipate costs. The work product of the co-neutrals will be subject to government transparency requirements.
“Key performance areas to be addressed” include these:
(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 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
In a statement sent to CapitolBeatOK, Howard Hendrick, director of DHS, said, “The terms of this settlement are unique in this kind of litigation. It is the first time a class action civil rights lawsuit involving a state child welfare system has been resolved without a consent decree.”
Compliance will dissolve on Dec. 15, 2016 if the state complies in “good faith” with proposed improvements for the prior two consecutive years. Hendrick described the settlement agreement as “a new approach to resolving class action civil rights claims involving child welfare systems.” He says the “good faith” standard is better for the state than the “substantial compliance” standard characteristic of class action litigation.
Defending a record of improvement he contends dates to 1995, Hendrick reflected, “The strength of our defense and the excellent work our child welfare workers do every day changed the conversation about how these kinds of cases should be resolved.” He believes a better future is “outlined in a framework that both sides hope will satisfy our shared desire to meet the needs of vulnerable children and families.” He said if the case had moved to trial national experts were prepared to defend Oklahoma's position. Strong defense allowed the state to resolve the suit without a consent decree, he said.
Hendrick continued, “We will continue to make improvements even after compliance with the future plan has been completed. The strengths and list of child welfare achievements are many, including an adoption rate that is more than twice the national average per capita over the last five years.”
Hendrick said improvements for foster care have been notable, and will continue during and after implementation of any plan flowing from the settlement.
Hendrick supports higher pay for child welfare works, saying, “We know this work is intensive, stressful, and demands people with critical thinking skills. As a state, we should value this work with pay that reflects the level of responsibilities expected of these workers.”
His formal comments concluded, “Some of these improvements, particularly those involving recruitment and retention of child welfare workers and foster parents, will require additional state dollars. We will need the support of the Governor, the legislature, and the judicial system to commit the resources needed to ensure that Oklahoma’s child welfare system can meet these demands.”
Speaker of the House Kris Steele, a member of the CRB who voted to approve the settlement, has been a leading critic of DHS performance, with particular focus on several failures contributing to the deaths of children in state care. In a statement sent to CapitolBeatOK, Steele said:
“The Legislature must be involved in this planning process and I'm pleased it will be. DHS belongs to the public and serves the public, so it is critical for the public's representatives to have meaningful input.” He said a special House DHS working group has been “scrutinizing every aspect of DHS and looking for improvements.”
Steele named state Rep. Jason Nelson, an Oklahoma City Republican, to guide reform efforts last summer. Nelson has said improvements might require “spending more money,” and that that reallocation of existing resources would be examined. Co-chairman of the reform effort, with Nelson, is state Rep. Richard Morrissette, an Oklahoma City Democrat.