Perhaps you have read in the newspaper near the end of June, that the State was again in court for not doing enough for foster children.  A Whatcom County judge recently held that the State, although spending substantial sums of money and hiring hundreds on new case workers, still had not fulfilled its settlement agreement following the Braam decision.  Let me give you some background.

Braam v. State of Washington, 150 Wn.2d 689 (2003), involved a class action suit on behalf of foster children against the Department of Social and Health Services. It was part of a nationwide effort to force states to improve their foster care systems.  I remember the case well; I wrote for a unanimous Washington Supreme Court.

Three foster children were selected as test cases for trial.  The most favorable child for the State was a girl who was about to graduate from high school with a 3.6 GPA, had no history of drug use, and had never been involved in the criminal justice system.   She seemed like a poster child for the success of the foster child program until you looked more closely.  In the eight years she had been in the foster child program, she had been placed in 34 different foster homes.  She had a new home on average every three months.  She addressed each new set of foster parents as Mom and Dad.  She didn’t get involved in any school activities because she knew she would be moved.  In one school year she was placed in foster homes in Bellingham, the Tri Cities, and Vancouver; essentially she attended schools in three of the four corners of the state.  She didn’t make friends for the same reason.

Unfortunately, the constitutional rights of foster children have often been analyzed as wards of the State and courts have afforded foster children the same standard of care as another class of wards of the State, criminal prisoners.  To show a breach of prisoners rights, the prisoner must show that the States conduct was so egregious that it shocks the courts conscience.    We rejected the States argument that we should apply the shocks the conscious standard in favor of a negligence standard.  In other words, the State needed to meet the standard in the community much like a doctor or architect is expected to conform to the standards of the community.  We held that foster children have a constitutional right to be free from unreasonable risks of harm and a right to reasonable safety.  To be reasonably safe, the State as custodians and caretakers of foster children, must provide conditions free of unreasonable risk of danger, harm, or pain, and must include adequate services to meet the basic needs of the child.  (See the Braam opinion, page 700.)

Following the courts decision in 2003, lawyers for the foster children and the State hammered out a settlement agreement, the details of which I know nothing, to settle the lawsuit.  I later read in the newspaper that it was going to cost the State $70 million dollars to comply with the settlement.  It appears that the parties now dispute if the State has lived up to that agreement.  This is, I think, a remarkable story of otherwise powerless foster children challenging the government.  It is an example of the brilliance of our constitution, its checks and balances; in this case the right of individuals to utilize the judicial branch of government to challenge the executive branch.  Justice should be blind in a court of law and a pauper should be able stand up to her government.  I am eager to see how this story ends.