A class-action child abuse settlement set to make major changes to Oregon’s foster care system must consider the needs of hundreds of foster youth who still live with their birth parents, a federal appeals court ruled Tuesday.
The unanimous decision from the 9th Circuit Court of Appeals comes two weeks after a neutral court-appointed expert delivered a report outlining three- and four-year timelines for plans to monitor and combat the years-long problem for the state. Tuesday’s opinion reverses a decision by U.S. District Judge Ann L. Aiken in June 2024 to ensure the settlement’s reference to a “child in care” only includes children in physical and legal custody of the state.
“That some children who are wards of the state and in the state’s legal custody are placed with their biological parents, rather than with foster parents, does not affect the existence of due process protections,” reads the 22-page decision written by Appellate Judge Lucy H. Koh, who was appointed by former President Joe Biden in 2021.
The new guidelines broaden the scope of a May 2024 settlement between foster youth advocates and the state, now including an estimated 600 to 700 children who may be in trial stays with family or who have to stay with parents while the state tries to find them a new home.
The Portland-based Disability Rights Oregon brought the lawsuit in 2019 alongside a national nonprofit to represent a group of 10 current and former foster youth clients. They sued Gov. Tina Kotek and the Oregon Department of Human Services, alleging traumatic and persistent mistreatment throughout the state’s unstable foster homes. Lawyers for Oregon had argued that the state lacks the same obligations as it does for foster youth once children make it into their parent’s homes.
“The court rejected the state’s attempt to limit which youth are entitled to relief under the agreement,” Disability Rights Oregon said in a statement Tuesday. “This expanded definition means children still living in their parents’ home, or returned there on ‘trial home visits,’ will now be included in the settlement’s oversight and protection.”
The appeals ruling emphasizes the centrality of those homes in the issue of child abuse in Oregon’s foster care system. In one case, two of the plaintiffs were children whose mother was reported for making suicidal threats on social media. During a temporary trial visit, a case worker reported the house as cluttered and uninhabitable.
“When a child legally depends on ODHS for his or her needs to be met, ODHS’s duties under the Fourteenth Amendment do not depend on whether the child is housed with a foster parent or a biological parent with no legal rights, as the power of ODHS over the child’s liberty is identical in both cases,” the decision reads.
Work of court-appointed expert ongoing
The practices Oregon’s has undertaken to reform the foster care system have come under heightened scrutiny over the past year. The human services department in December agreed to compensate $40 million in a separate lawsuit brought by four former foster children who were physically and sexually abused in a home.
Ten children whom the state has been monitoring during the first four months of 2025 have already died, The Oregonian reported in April. Although those youths were not in formal foster care, the state suspects that at least four were babies who died sleeping in unsafe conditions while a parent or guardian was using marijuana. The human services department did not immediately respond to questions about the ruling or if more cases have been recorded.
“Over the past decade, the State has brought in new leadership and instituted new programs and policies focused on prevention, so that families can obtain the services they need to stay together safely,” lawyers representing Kotek and the human services department wrote in a court filing. “But while the State can provide services, the State cannot control what parents do in their own homes.”
The May 2024 settlement paved the way for the establishment of a court-appointed expert, Kevin Ryan, who delivered initial findings in late July on how he plans to address scenarios like those. He outlined several areas of focus, including rates of maltreatment in foster care, timely notifications of abuse reports and proper nursing and medical assessments, that he intends for officials to study and monitor.
“No single measurement or ultimate outcome — no matter how strong a state’s performance — will comprehensively reflect appropriate care of children and the outcomes they experience,” reads the report from Ryan, who was New Jersey’s first statewide child advocate. “The measurements, outcomes and timelines established in this initial review are designed to work together to support system transformation.”
Tuesday’s ruling delivered a softer blow to Oregon leaders on the issue of foster care than typical for the past year. The 9th Circuit Court of Appeals in late July struck down Oregon’s policy requiring adoptive parents to embrace foster youth’s LGBTQ+ identity, citing free speech rights. Kotek also failed to convince lawmakers this past session to pass another bill that would have revived the state’s practice of sending foster youth out-of-state for care, a controversial practice the state paused six years ago in the wake of reported abuse.
In a June veto message blocking legislation to expand Oregon’s foster care bill of rights, Kotek suggested that her failed bill took a better approach to child welfare and investigations. She wrote that the measure she was vetoing had language that was at times unclear and in other places too specific, taking issue with one phrase in particular: “child in care.”
