Class action against Alaskan foster care system survives summary judgment

(CN) — A federal judge on Tuesday denied in part the Alaska Department of Family and Community Services' bid to resolve on summary judgment a class action accusing it of violating the civil rights of children in its foster care system.

U.S. District Judge Sharon Gleason allowed the minors, represented by attorneys with A Better Childhood, the Perkins Coie law firm and the Northern Justice Project, to proceed to trial on their claim for violation of their substantive due process rights pursuant to the Fourteenth Amendment.

That claim, the children's attorneys argued in the their lawsuit, is based on the department's Office of Children's Services deliberate indifference to the children's right to freedom from the foreseeable risk of maltreatment; their right to protection from unnecessary intrusions into their emotional wellbeing; and their right to treatment and care consistent with the purpose and assumptions of government custody.

"Defendants’ argument for summary judgment is that too few children in OCS custody experience substantial placement instability or maltreatment and therefore plaintiffs have not shown that defendants are deliberately indifferent to plaintiffs’ liberty interests," Gleason said. "However, the court agrees with plaintiffs that they need not show actual harm in order to prove a substantive due process violation; rather, a substantial risk of harm is all that is required."

The judge, a Barack Obama appointee, however agreed that the state agency was entitled to summary judgment on the children's claim that they are deprived of the right to parent-child association because, she said, distance or failure to "facilitate" visitation do not amount to unwarranted state interference in the child-parent relationship.

In addition, Gleason noted, the lawsuit's claim of limited visits between one minor and his mother, even if true, doesn't amount to deliberate indifference to this child's right to familial association.

It's the latest ruling in the case that's headed for trial later this month.

"The state is pleased that the court granted its motion for summary judgment on Count 2 of the complaint and is confident that it will prevail at trial on the remaining claims in the case, Patty Sullivan, a spokesperson for the Alaska Department of Law said in a response to the ruling.

The lawsuit, first filed in 2022 on behalf of all children whom Alaska’s Office of Children’s Services (OCS) has or will have legal custody, seeks to force Alaska to hire more case workers and to enjoin the state "from placing any child in a congregate care setting based on the unavailability of foster home resources."

In 2023, U.S. District Judge Joshua Kindred agreed to dismiss a few of the claims brought by the foster children but allowed most of the suit to move forward, finding that the children had standing to sue and that the plaintiffs had "adequately alleged they are suffering a continuing injury or are under imminent threat of future injury. Each named plaintiff is in OCS custody and therefore cannot avoid exposure to the defendants’ challenged conduct."

Gleason, who took over the case last year, agreed to trim some of the claims in April. For example, the plaintiffs had claimed they have the right to be placed "in the least restrictive and most family-like setting, closest to their home community that conforms to nationally recommended professional standards.” But the judge found that the right is to "review procedure designed to achieve placement in a safe, least-restrictive setting."

"The right is not to the placement itself," Gleason said at the time.

She also dismissed a claim, that the state is violating foster children's rights "to quality services to protect his or her safety and health."

"Unlike the provisions above that focus on 'each child' or particular children that meet certain requirements, this provision concerns a state’s obligation to implement standards to provide children in foster care with quality services," Gleason wrote in April. "There is nothing individualized or rights-creating in the provision that would indicate that Congress intended to create an enforceable right to each child."

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