Wyatt B. v. Kotek

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

WYATT B. and NOAH F. by Civ. No. 6:19-cv-00556-AA

their next friend Michelle

McAllister; KYLIE R. and ALEC

R. by their next friend Kathleen

Megill Strek; UNIQUE L. by her

next friend Annette Smith;

SIMON S. by his next friend Paul

Aubry; RUTH T. by her next friend

Michelle Bartov; BERNARD C. by

his next friend Ksen Murry; NAOMI B.

by her next friend Kathleen Megill

Strek; and NORMAN N. by his next

friend Tracy Gregg, individually and

on behalf of all other similarly

situated,

Plaintiffs, OPINION & ORDER

v.

KATE BROWN; FAIRBORZ

PAKSERESHT; REBECCA JONES

GASTON; OREGON DEPARTMENT

OF HUMAN SERVICES,

Defendants.

_______________________________________

AIKEN, District Judge.

This class action comes before the Court on (1) cross-motions to exclude expert

testimony; (2) Defendant’s partial motions to dismiss moot claims; and (3) Plaintiffs’

motion to certify the class. The Court resolves these motions by omnibus order as

follows:

Defendants’ Motion to Exclude Experts, ECF No. 114, is DENIED. Plaintiff’s

Motion to Exclude Experts, ECF No. 203, is GRANTED in part and DENIED in part.

Defendants’ Motions to Dismiss as Moot, ECF Nos. 109, 230, 232, 252, 253, are

DENIED. Plaintiffs’ Motion to Certify, ECF No. 64, is GRANTED.

PART I: CROSS-MOTIONS TO EXCLUDE EXPERTS

This class action comes before the Court on cross-motions to exclude expert

testimony. ECF Nos. 114, 203. The Court concludes that these motions are

appropriate for resolution without oral argument. For the reasons set forth below,

Defendants’ motion is DENIED and Plaintiffs’ Motion is GRANTED in part and

DENIED in part.

Legal Standards

Federal Rule of Evidence 702 allows admission of “scientific, technical, or other

specialized knowledge” by a qualified expert if it will “help the trier of fact to

understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(b). Expert

testimony is admissible pursuant to Rule 702 if it is both relevant and reliable.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). An expert witness

may provide opinion testimony if: (1) the testimony is based upon sufficient facts or

data; (2) the testimony is the product of reliable principles and methods; and (3) the

expert has reliably applied the principles and methods to the facts of the case. Fed.

R. Evid. 702(b)-(d).

The district court must “act as a ‘gatekeeper’ to exclude junk science that does

not meet Federal Rule of Evidence 702’s reliability standard.” Ellis v. Costco

Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). However, this duty is to evaluate

not the correctness of the expert’s conclusion, but the principles and methodology

used to generate the conclusions. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010).

Moreover, the inquiry into admissibility of expert opinion is a “flexible one,” where

“[s]haky but admissible evidence is to be attacked by cross examination, contrary

evidence, and attention to the burden of proof, not exclusion.” Id. (citing Daubert,

509 U.S. at 596). In other words, the Court has broad discretion and flexibility in

structuring and assessing an expert’s reliability. Murray v. S. Route Mar. SA, 870

F.3d 915, 924 (9th Cir. 2017); see also Ellis, 657 F.3d at 982 (“A trial court has broad

latitude not only in determining whether an expert’s testimony is reliable, but also in

deciding how to determine the testimony’s reliability.”). “The party offering the

expert bears the burden of establishing that Rule 702 is satisfied.” Keegan v. Am.

Honda Motor Co., Inc., 284 F.R.D. 504, 515 (C.D. Cal. 2012) (internal quotation marks

and citations omitted).

The Ninth Circuit has approved of the application of the standard in Daubert

to expert reports in support of or in opposition to motions for class certification. Ellis,

657 F.3d at 982. “On a motion for class certification, it is not necessary for the expert

testimony to resolve the factual disputes going to the merits of plaintiffs’ claim or

claims; instead, the testimony must be relevant to determining whether there was a

common pattern and practice that could affect the class as whole.” Keegan, 284 F.R.D.

at 515 (internal quotation marks and citation omitted).

Discussion

As noted, the parties have each filed a motion to exclude expert testimony and

opinions advanced by their opponent in support or opposition to class certification.

Defendants move to exclude the opinions of Bianca Wilson, Ph.D.; Sue Steib, Ph.D.;

Patricia Rideout, J.D.; Alen Puckett, Ph.D; and Angelique Day, Ph.D. Plaintiffs, in

turn, move to exclude the opinions of Kevin Cahill, Ph.D., and Julie Collins, M.S.W.

The Court addresses each challenged expert in turn.

I. Dr. Wilson

Dr. Wilson has a Ph.D. in psychology and has spent the last eight years

researching “the role of sexual orientation, gender identity, and gender expression

(SOGIE) in the demographics and experiences of youth in foster care.” Lowry Decl.

Ex. 4 (“Wilson Report”), at 5. ECF No. 67-1. Among other topics, Dr. Wilson opined

that “a conservative estimate would suggest there are at least 592 LGBTQ youth out

of the total of 3,102 youth ages 13 and older who spent at least one day in some kind

of foster family care (using the DHS report for FFY 2018).” Id. at 8.

Defendants move to exclude Dr. Wilson’s testimony and report as unreliable.

Defendants assert that Dr. Wilson improperly based her conclusions about the

number of SGM children in Oregon foster care based on data from an earlier study of

children in foster care in Los Angeles County. Blaesing Decl. Ex. 1. (Bianca D.M.

Wilson, Angeliki A. Kastanis, Sexual and Gender Minority Disproportionality and

Disparities in Child Welfare: A Population-Based Study, 58 CHILDREN AND YOUTH

SERVICES REVIEW 11-17 (2015)). ECF No. 115-1.

Dr. Wilson’s prior study cautions that “it is important to recognize that these

estimates [of numbers of SGM youth] were derived from a study of one large urban

county child welfare service department” and “more research is needed to understand

the experiences of foster youth in other locations and to assess the usefulness of the

methodology and generalizability of the results beyond Los Angeles County.”

Blaesing Decl. Ex. 1, at 5. Defendants contend that Dr. Wilson’s report contradicts

the findings of her prior study by using the Los Angeles County data to extrapolate

information about Oregon. Dr. Wilson’s report, however, indicates that in the years

following the Los Angeles study, two more studies have been completed, “one national

and one California statewide[,]” and the two studies “have demonstrated similar

findings of disproportionality and disparities for LGBTQ youth in foster care.” Wilson

Report, at 7. The Court concludes that there is no disqualifying contradiction

between Dr. Wilson’s Report and her previous findings.

Defendants also contends that Dr. Wilson’s Report lacks an empirical basis and

is therefore speculative. In her Report, Dr. Wilson discussed the findings of the Los

Angeles County Study and concluded

The findings were generalized to the Los Angeles foster care population,

and indicative of child welfare departments nationwide as there is no

evidence that Los Angeles, as the largest child welfare system in the

country, would be significantly different from others. If anything, given

the positive LGBT policy context of California, if there is a difference

between Los Angeles and other jurisdictions, it is reasonable to expect

LGBTQ youth would be faring worse in other localities.

Wilson Report, at 7.

In her deposition, Dr. Wilson testified that empirical data for comparison to

other areas does not yet exist and that her conclusion was based on an “educated

hypothesis” and projections based on her experience as a researcher in this field.

Blaesing Decl. Ex. 2, at 7-8. ECF No. 115-2.

The Court concludes that Dr. Wilson’s opinion is sufficiently supported and

based on more than mere speculation. It is significant that Dr. Wilson’s testimony is

based on her own prior research, supported by later studies. See Daubert v. Merrell

Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1996) (Daubert II) (“That an expert

testifies based on research he has conducted independent of the litigation provides

important, objective proof that the research comports with the dictates of good

science.”). As the Ninth Circuit observed, a “[l]ack of certainty is not, for a qualified

expert, the same thing as guesswork.” Primiano, 598 F.3d at 565. “Expert opinion

testimony is relevant if the knowledge underlying it has a valid connection to the

pertinent inquiry” and “it is reliable if the knowledge underlying it has a reliable

basis in the knowledge and experience of the relevant discipline.” Id. (internal

quotation marks and citations omitted). The Court concludes that Dr. Wilson meets

the necessary threshold of admissibility. Resolution of the weight due to Dr. Wilson’s

opinions must await further development.

II. Dr. Steib and Ms. Rideout

Dr. Steib has a Ph.D. in social work and a master’s degree in social work.

Lowry Decl. Ex. 3 (“Steib-Rideout Report”), at 9. ECF No. 67-1. Dr. Steib has “forty-

five years of child welfare experience including direct practice, agency

administration, research, and consultation,” and worked for 31 years in the Louisiana

child welfare system as a caseworker, casework supervisor, program administrator,

and statewide Director of Child Welfare Programs. Id. at 8-9.

Ms. Rideout has a juris doctorate and “over thirty years of experience in the

child-welfare field, as a lawyer, national consultant, and agency administrator.” Id.

at 8. Ms. Rideout served as the director of Cuyahoga County Division of Children

and Family Services in Cleveland, Ohio from 2011 to 2015 and as a Juvenile Court

Magistrate in Toledo, Ohio. Id.

Dr. Steib and Ms. Rideout reviewed the case files of the named Plaintiffs in an

effort “to objectively assess Oregon DHS practice in light of our understanding of

reasonable professional standards in child welfare.” Steib-Rideout Report, at 7.

Specific areas of focus in the review were: (1) the pathway and timeliness

of Oregon DHS’ intervention in the family of each child; (2) the quality

of the DHS assessment of each child’s needs with regard to safety,

permanency, and well-being; and (3) the capacity of the DHS system to

provide stable placement setting and treatment matched to the needs of

each child and his/her family.

Id.

Defendants contend that Dr. Steib and Ms. Rideout improperly relied on case

studies as the basis for their conclusions. Defendants argue that the named Plaintiffs

do not form a representative sample of children in DHS care and so a report derived

from studying only those cases will not be sufficiently reliable. In the child welfare

context, courts have admitted expert testimony based on review of the named

plaintiffs’ case files for purposes of comparison against accepted professional

standards. See, e.g., B.K. by Tinsley v. Faust, No. CV-15-00185-PHX-ROS, 2020 WL

2616033, at * 5 (D. Ariz. May 22, 2020) (admitting the testimony of an expert who

reviewed the named plaintiffs’ case files when the expert “has decades of social work

and child welfare experience,” and “is qualified to provide testimony on at least the

care received by B.K. and B.T. while in the Arizona child welfare system, and whether

that care meets the standards of professional practice.”); Kenny A. v. Perdue, Civil

Action No. 1:02-cv-1686-MHS, 2004 WL 5503780, at *13 (N.D. Ga. Dec. 13, 2004)

(rejecting a challenge to an expert report based on review of only five individual case

files because “[e]ven though Ms. Smith’s report by itself may be insufficient to

establish class-wide constitutional violations, it will still assist the Court, in

conjunction with all the other evidence presented, in understanding how services are

provided in the individual setting and how individual children are harmed when

appropriate services are not provided.”). Consistent with those examples, the Court

declines to exclude the expert report and testimony Dr. Steib and Ms. Rideout on the

basis that their report is based on review of a limited number of case files. The value

of that evidence to a class-wide inquiry goes to weight, rather than admissibility.

Defendants also contends that Dr. Steib and Ms. Rideout did not apply any

objective federal or Oregon professional standards in their assessment of the case

files. The Ninth Circuit has held, however, that an expert’s opinion may be based on

the expert’s experience and knowledge of the industry as a whole. United States v.

Laurienti, 611 F.3d 530, 548 (9th Cir. 2010).

In Kenny A. v. Perdue, a Georgia district court similarly rejected an argument

that Daubert and its progeny require “the existence of ‘generally recognized national

standards’ as a prerequisite to expert testimony on accepted standards in a particular

field.” Kenny A., 2004 WL 5503780, at *12. “Taken to its logical conclusion, this

argument would effectively destroy plaintiffs’ substantive due process rights and

permit State Defendants to operate Georgia’s child welfare system in complete

disregard of any professional standards, no matter how well accepted, so long as no

uniform set of national standards had been formally adopted. Clearly, this is not the

law.” Id. Rather, the district court found that the plaintiffs’ experts had adequately

relied on a variety of sources of accepted professional standards, “including state law,

regulations, and policies; federal law; standards published by the Child Welfare

League of America and the Council on Accreditation for Services to Children and

Families; performance indicators, outcomes, and systemic factors developed by HHS;

academic publications; and their own considerable professional experience.” Id.

In this case, Dr. Steib testified in her deposition concerning the metrics used

to assess child welfare practices. See, e.g., Second Lowry Decl. Ex. 4, at 14 (“And I’ve

done this work for the better part of 50 years. I have, I think, a good understanding

of what it is that public child welfare in the country is charged to do. I think those

standards are reflected in, for example, the federal standards for the Child and

Family Services Review, and as we state here, they pertain, primarily, to the child’s

safety, permanency, and well-being. That’s sort of the triad on which—around which

child welfare services are supposed to concern themselves when they serve

children.”). ECF No. 161-1. Dr. Steib also based her assessment on the standards

she knows and understands as a result of her work in the field of child welfare. Id.

at 16.

Ms. Rideout similarly testified as to the acceptable standard of practice in child

welfare based on her experience in the field, her training, and her education. Second

Lowry Decl. Ex. 5, at 7-8, 15. Ms. Rideout testified that, while she was not aware of

any published standard by an accrediting organization, the standards she relied on

were “widely and deeply documented in all literature on foster care for kids.” Id. at

9. Ms. Rideout testified that standards are frequently reflected in the policies and

practice manuals of state agencies but that such materials would be broadly similar,

reflecting a “commonality in the field,” which formed part of the basis of her

understanding of the professional standards. Id. at 13-14.

The Court concludes that Dr. Steib and Ms. Rideout have adequately set forth

a basis for their expert opinions on professional standards in the area of child welfare.

The Court therefore declines to exclude the testimony or opinions of Dr. Steib or Ms.

Rideout.

III. Dr. Puckett

Dr. Puckett has a Ph.D. in social welfare, as well as a master’s degree in social

work. Lowry Decl. Ex. 6 (“Puckett Report”), at 21. Dr. Puckett “has held a number

of positions with professional experience totaling nearly 30 years in public and

private child welfare agencies, children’s mental health and juvenile justice

organizations, and in related research and consulting work,” including contributions

to academic studies and consultation with state and local child welfare agencies in

several states. Id. at 3.

The Puckett Report discloses in its opening paragraph that the “[q]uantitative

analysis of the Adoption and Foster Care Analysis and Reporting System (‘AFCARS’)

data provided by Oregon Department of Human Services (‘DHS’) were conducted by

Jared Hirsch of ABC [“A Better Childhood”] with Dr. Puckett’s review and constitute

much of the source information on which this report is based.” Puckett Report, at 3.

Mr. Hirsch is a paralegal employed by A Better Childhood, which represents

Plaintiffs. Second Lowry Decl. Ex. 7, at 5. The details of the quantitative analysis

performed by Mr. Hirsch are included in Appendix B of the Puckett Report. Puckett

Report, at 23-39. The Puckett Report affirms, however, that the “[c]ontent analysis

and opinions provided in this report are solely those of the author, Alan M. Puckett.”

Id. at 3.

Defendants seek to exclude Dr. Puckett’s testimony and report on the basis

that Dr. Puckett “out-sourced” the “number-crunching” to Mr. Hirsch and could not

independently verify the accuracy or reliability of the calculations upon which his

conclusions were based.

Mr. Hirsch has supplied a declaration in which he describes his background in

data analysis, particularly of large datasets, and his work as a paralegal for ABC.

Second Lowry Decl. Ex. 11 (“Hirsch Decl.”) ¶¶ 1-3. Mr. Hirsch affirmed that his work

as a paralegal “regularly included both quantitative and qualitative analysis of state

child welfare systems, largely through data that was made publicly available through

the Children’s Bureau’s own summaries of datasets such as AFCARS, NCANDS, and

NYTD.” Id. at ¶ 4. In the present case, Mr. Hirsch reported that Dr. Puckett would

conduct the analysis of the data while Mr. Hirsch did the “data work” of “organizing

and presenting the numbers in aggregate.” Id. at ¶ 5. The Oregon AFCARS data

was produced by Defendants in discovery and is not publicly available. Id. at ¶¶ 6-8.

The specifics of Mr. Hirsch’s “data work” are set forth in Appendix B of the Puckett

Report, but Mr. Hirsch summarized it as follows:

Broadly, I would define my actions with respect to the AFCARS data as

organization and presentation. I utilized the Children’s Bureau’s simple

bulletin on understanding AFCARS data elements to interpret coding

and present summary statistics on the population from person-level

data (~8000+ rows of data). This largely consisted of basic filtering and

counting.

Id. at ¶ 9.

In the course of his work, Mr. Hirsch “liaised with Defendants’ counsel to

discuss the file and ask questions on a number of occasions,” and Mr. Hirsch was

present at Dr. Puckett’s deposition. Hirsch Decl. ¶¶ 7, 11. Defendants have not

sought to depose Mr. Hirsch about his work on the Oregon AFCARS data or the

Puckett Report. Id. at ¶¶ 11-12.

Courts have observed that there is “nothing remarkable about a paid expert

preparing a report with the assistance of staff.” Manpower, Inc. v. Ins. Co. of Pa., 732

F.3d 796, 810 (7th Cir. 2013). By the same token, however, “[s]triking expert evidence

due to its reliance on questionable data is not a novel course of action.” Bruno v.

Bozzuto’s, Inc., 311 F.R.D. 124, 137 (M.D. Penn. 2015); see also McClellan v. I-Flow

Corp., 710 F. Supp.2d 1092, 1121-25 (D. Or. 2010) (excluding an expert report when

the plaintiffs’ counsel created the idea for the expert’s study, provided the raw patient

data, selected the nurse to perform the data extraction, and substantially directed

the course of the expert’s study with the goal of producing results tailored to support

the plaintiffs’ litigation).

The circumstances surrounding the Puckett Report do not support such a

conclusion, however. The Court finds it significant that the data in question did not

originate with Plaintiffs but was produced by Defendants in discovery and only

organized by Mr. Hirsch for the purposes of Dr. Puckett’s analysis. Mr. Hirsch’s role

in the process and the work he did are apparent on the face of the Report itself.

Defendants do not appear to challenge the authenticity of the underlying data, nor

do they point to any errors in the work done by Mr. Hirsch, as set forth in Appendix

B of the Puckett Report. Dr. Puckett’s testimony is based on that same data, as

organized by Mr. Hirsch, and the Court sees no cause to exclude Dr. Puckett’s

testimony or opinion.

IV. Dr. Day

Dr. Angelique Day has a Ph.D. in interdisciplinary health sciences and a

master’s degree in social work. Lowry Decl. Ex. 5 (“Day Report”), at 34. Dr. Day has

experience as a child protective services caseworker in Michigan and has worked for

over ten years in the area of adolescent foster youth, with an emphasis on aging-out

youth. Id. at 4-6.

Defendants seek to exclude Dr. Day’s testimony and Report on the basis that

Dr. Day prepared it quickly over the course of only a matter of weeks and that it is

not something that could be published in a peer-reviewed journal. At her deposition,

Dr. Day testified that she “love[s] to have three months” to prepare “a document we’re

proud of,” but that she only had had “two and a half weeks to get this turned around.”

Blaesing Decl. Ex. 6, at 5. However, Dr. Day did not testify that she had insufficient

time to prepare her Report, or that her methodology or conclusions were undermined

by the time constraints. The Court cannot conclude that the Day Report is unreliable

simply because it was prepared quickly.

As to the question of publication, the Ninth Circuit has cautioned against

“conflat[ing] the standards for publication in a peer-reviewed journal with the

standards for admitting expert testimony in a courtroom.” Wendell v.

GlaxoSmithKline LLC, 858 F.3d 1227, 1235 (9th Cir. 2017). Although “one means of

showing that the testimony is based on scientifically valid principles is by proof that

the research and analysis supporting the proffered conclusions have been subjected

to normal scientific scrutiny through peer review and publication,” but “expert

testimony may still be reliable and admissible without peer review and publication.”

Id. (internal quotation marks and citation omitted). In this case, Dr. Day also

testified that the Day Report is not something that could be published in a peer-

reviewed journal because it did not include “a deep analytical assessment of Oregon

laws” or include original research, which Dr. Day testified are normally prerequisites

to publication. Blaesing Decl. Ex. 6, at 7-8. The Court declines to exclude Dr. Day’s

testimony because the Day Report was not prepared with the standards of publication

in mind and so does not meet those standards.

Defendants also seek to exclude Dr. Day’s testimony and Report on the basis

that she did not examine Oregon policies or practices and focused instead on

outcomes. Dr. Day testified that, prior to her work on the Day Report, she had never

done research on foster care youth in Oregon specifically. Blaesing Decl. Ex. 6, at 6.

Dr. Day did not examine Oregon laws on aging-out foster care youth and focused

instead on the outcomes because “as someone who has worked in the policy world

that we know, a policy is only as good as how well it’s implemented.” Id. at 9. The

Court concludes that Dr. Day’s Report and opinion are sufficiently based on her own

expertise and review of documents to meet standards for reliability. Dr. Day’s lack

of familiarity with Oregon-specific laws or policies and Defendants’ challenges to her

focus on “outcomes” in preference to written policies are matters for cross-

examination at trial and go to the weight of the testimony, rather than its

admissibility.

V. Dr. Cahill

Dr. Kevin Cahill has a Ph.D. in economics and a master’s degree in the same

field. Kolthari Decl. Ex. 1 (“Cahill Report”), at 3. ECF No. 206-1. Dr. Cahill

specializes in applied econometrics and labor economics and works on project teams

examining “issues relevant to public policy” and has published work “on various

topics related to applied microeconomics.” Id. In addition to his public policy

research, Dr. Cahill works as an economist “on litigation-related cases involving

employment and contract disputes, discrimination, antitrust issues, and other topics

that require statistical expertise, analyses involving applied micro-economics, or the

assessments of economic damages.” Id.

Plaintiffs object that Dr. Cahill lacks the necessary qualifications to be

considered an expert. Dr. Cahill has limited experience in child welfare and testified

that his only prior experience on the subject was a research project on “pathways

through foster care” done in conjunction with Oregon Health and Science University.

Post Decl. Ex. 3, at 7-10. ECF No. 204-3. The research was never submitted to an

academic journal for publication and the project was not included in Dr. Cahill’s CV

or referenced in the Cahill Report. Id. at 11.

Plaintiffs also contend that the Cahill Report is not reliable because

Defendants have not demonstrated that Dr. Cahill is qualified to offer expert opinions

or conclusions on the AFCARS system.

With respect to the AFCARS data, Dr. Cahill testified that he relied on

information provided by Dr. Paul Bellatty of the Office of Reporting, Research,

Analytics and Implementation at DHS. Post Decl. Ex. 3, at 36. When pressed on the

subject during his deposition, Dr. Cahill was evasive about whether he knew Dr.

Bellatty to be a reliable source for such information, other than repeatedly stating

Dr. Bellatty’s title. Id. at 36-39, 41. Dr. Bellatty testified at his deposition that he

had “very, very little” experience with AFCARS datasets. Post Decl. Ex. 5, at 5. Dr.

Bellatty testified that he does not personally work with AFCARS data and did not

have any training working with AFCARS data. Id. at 6. Dr. Bellatty testified that

Dr. Cahill contacted him with definitional questions related to AFCARS and Dr.

Bellatty would “go and get the answer and then call him back.” Id. at 16. Dr. Bellatty

testified “To be quite honest, I don’t have a great understanding of AFCARS. And

I’m just translating what [DHS staffer] Judy says to Dr. Cahill in most of these

correspondence because I don’t truly understand it and don’t use or rely on AFCARS

data.” Id. at 30. Dr. Bellatty testified that Dr. Cahill knew Dr. Bellatty didn’t have

the answers and “would have to go to someone else who could get the answers”

because “I’m pretty clear about I’m not knowledgeable about AFCARS data.” Id. Dr.

Cahill’s insistence that he relied on Dr. Bellatty as a source for information about

AFCARS data, apparently by sole virtue of Dr. Bellatty’s position with DHS,

substantially undermines the reliability of Dr. Cahill’s conclusions.

Turning to the question of qualifications, Dr. Cahill was asked to opine on “the

extent to which foster children’s needs are common across the State.” Cahill Report,

at 7. Dr. Cahill concluded that “the needs of Oregon’s foster care children are not

common across the state.” Id. at 30. The Court concludes that Dr. Cahill, as a labor

economist and statistician, is not qualified to render an opinion on the “needs of

Oregon’s foster care children,” which is a prerequisite to an opinion on how common

those needs might be.

Dr. Cahill also concluded that the named Plaintiffs were not “typical” of foster

care children in Oregon based on “geography, placement setting, and number of

placements.” Post Decl. Ex. 3, at 31. When asked how he selected those factors as

criteria for his assessment of whether the named Plaintiffs were typical, Dr. Cahill

was unable to articulate a basis, other than to say that the factors “seem like they

might be relevant to this analysis.” Id. at 31-32. This is insufficient to support an

expert opinion as reliable.

In addition, “typicality” and “commonality” are legal conclusions in the context

of a motion to certify a class. An expert witness “cannot give an opinion as to her

legal conclusion, i.e., an opinion on an ultimate issue of law.” Nationwide Trans. Fin.

v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (emphasis in original).

Dr. Cahill is not an attorney and testified that he had “no legal understanding of class

certification.” Post Decl. Ex. 3, at 15. As noted, Dr. Cahill opines in his Report that

the named Plaintiffs “are not typical of foster care children in Oregon generally,” and

that “the needs of Oregon’s foster care children are not common across the state.”

Cahill Report, at 27-30. Dr. Cahill is neither qualified, nor permitted to offer such

legal conclusions. The Court therefore excludes Sections IV and V of the Cahill

Report.

Finally, Plaintiffs contend that the Cahill Report is improper because a

significant portion of the Report is devoted to attacking the reports of Plaintiffs’

experts. Dr. Cahill testified that he was retained, in part, to “review plaintiffs’ expert

reports and provide any opinions related to them.” Post Decl. Ex. 3, at 16. As noted,

Dr. Cahill is a labor economist by training with little or no expertise in child welfare

systems. As discussed in the preceding sections, child welfare systems are the

primary area of expertise for Plaintiffs’ experts. An expert “must be qualified in the

field they will testify about” and “expert in one field is not qualified to provide

opinions about a different field.” Jack v. Borg-Warner Morse TEC LLC, CASE NO.

C17-0537 JLR, 2018 WL 3819027, at *18 (W.D. Wash. Aug. 10, 2018) (citing Lucido

v. Nestle Purina Petcare Co., 217 F. Supp.3d 1098, 1103 (N.D. Cal. 2016)).

In his Report, Dr. Cahill does not confine his criticism of Plaintiffs’ experts to

matters relating to his area of training or expertise, but instead reprimands

Plaintiffs’ experts for engaging in what he perceives as “advocacy,” which “calls into

question the extent to which their role as an expert is one that is grounded in an

objective review of the facts in this matter.” Cahill Report at 26-27. Dr. Cahill also

suggests that the conclusions of Dr. Day “border on hyperbole” and “do not fit the

mold of statements made by an objective subject matter expert.” Id. at 26.

It is “a fundamental premise of our trial system that determining the weight

and credibility of witness testimony belongs to the jury who are presumed to be fitted

for it by their natural intelligence and their practical knowledge of men and the way

of men,” and “an expert witness may not usurp the jury’s function to weigh evidence

and make credibility determinations.” Davis v. Duran, 277 F.R.D. 362, 370 (N.D. Ill.

2011) (internal quotation marks and citations omitted, alterations normalized). Dr.

Cahill’s opinions about the credibility or motives of Plaintiffs’ experts are of no use to

the finder of fact and the Court therefore excludes Section III of the Cahill Report.

The Court will consider the balance of the Cahill Report, insofar as it offers an

assessment within the bounds of Dr. Cahill’s statistical expertise.

VI. Ms. Collins

Julie Collins has a master’s degree in social administration and policy. Kothari

Decl. Ex. 4 (the “Collins Report”), at 24. ECF No. 206-4. Ms. Collins has thirty-eight

years of experience in child welfare, mental health, substance abuse, and managed

care and is currently the vice president for practice excellence with the Child Welfare

League of America (“CWLA”). Id. at 2, 21. Ms. Collins and a team of staffers from

the CWLA reviewed the case files of the named Plaintiffs. Id. at 3-4.

In preparing her Report, Ms. Collins’ team “developed a tool to review the case

files to ensure consistency of the review process.” Collins Report, at 3. This “tool” is

not described in the appendices of the Collins Report and was not produced to

Plaintiffs. At her deposition, Ms. Collins testified that she and her team developed

the tool, and that they “used a tool that CWLA uses as part of the consulting review

in other states modified it or contextualized it . . . for the purposes of Oregon.” Kothati

Decl. Ex. 5, at 8, 13. ECF No. 206-5. Ms. Collins did not know when the tool was

finalized. Id. at 13. Ms. Collins described the tool as “the piece that was used to make

sure that we were all looking at the right similar information as we reviewed.” Id. at

17. The Court is otherwise left to guess at what the tool might have been. The opacity

surrounding this aspect of Ms. Collins’s methodology substantially undermines the

reliability of her Report. Nevertheless, the Court is disinclined to entirely exclude

the Collins Report on that basis, given Ms. Collins’s uncontested expertise in the field

of child welfare and that the purpose of the tool, as Ms. Collins described it, was to

ensure that Ms. Collins and her team were looking at the same information.

Substantively, the Collins Report concluded that the ten files of the Named

Plaintiffs were too few to constitute a representative sample of the “full number of

cases of children who are in the care of the state of Oregon DHS,” and that the named

Plaintiffs “are not typical of most children who enter foster care.” Collins Report, at

4. Plaintiffs do not challenge Ms. Collins’ expertise in the arena of child welfare, but

object that the Collins Report’s focus on typicality and commonality amount to legal

conclusions, rather than opinions based on Ms. Collins’ background and experience

in child welfare systems. The objection is bolstered by the opening paragraph of the

Collins Report, which states that “CWLA has been asked to review the case records

of the 10 named plaintiffs and render an opinion about whether they are typical of

children in foster care (typicality) and whether these 10 cases demonstrate that

systemwide deficiencies exist in Oregon’s foster care system (commonality),” Collins

Report, at 2, which strongly suggests that the Collins Report is intended to offer an

opinion based on ultimately legal questions.

In her Report, Ms. Collins concludes that the ten named Plaintiffs “are not

enough to be a representative sample of the full number of cases of children who are

in the care of the state of Oregon DHS,” and that “CWLA would never consider such

a small number of cases to be representative of the practices or issues for the agency.”

Collins Report, at 4. Rather, “CWLA recommends doing case record reviews on 10%

of the total number of relevant types of cases,” and suggests that “given the complaint

is regarding all children in care, CWLA would have conducted a review of 700 case

files (assuming that the current number of children in care was 7000).” Id. Based on

the limited number of cases, Ms. Collins found that no conclusion could be reached

on commonality. Id.

With respect to typicality, Collins concluded that the named Plaintiff represent

“some of the most challenging types of cases that a child welfare agency might have

to deal with,” and are “by no means representative of the most common cases.”

Collins Report, at 4. Ms. Collins opined that the named Plaintiffs “would likely be

the type of case that a worker might be assigned one or two times over many years,”

unless the caseworker specialized in such cases. Id. As a result, Ms. Collins

concluded that the named Plaintiffs are not “typical of most children who enter care.”

Id. at 16.

Defendants contend that Ms. Collins was not opining on commonality and

typicality as legal terms of art, but in the colloquial sense. Given that typicality and

commonality are important considerations in a motion for class certification, the

suggestion that Ms. Collins was speaking colloquially about those subjects in an

expert report offered in opposition to just such a motion strikes the Court as far-

fetched. However, the Court will not exclude the Collins Report in its entirety but

will instead exclude those portions of the Report that go beyond Ms. Collins’s

established area of expertise and cross into the realm of purely legal questions.

Conclusion

For the reasons set forth above, Defendants’ Motion to Exclude Expert

Testimony of Dr. Wilson, Dr. Steib, Ms. Rideout, Dr. Puckett, and Dr. Day, ECF No.

114, is DENIED. Plaintiffs’ Motion to Exclude Expert Testimony of Dr. Cahill and

Ms. Collins, ECF No. 203, is GRANTED in part and DENIED in part, as set forth

above.

PART II: MOTIONS TO DISMISS AND MOTION TO CERTIFY

Plaintiffs move to certify the proposed general class and subclasses in this

action. In addition to opposing Plaintiffs’ motion to certify, Defendants move to

dismiss the claims of many of the Named Plaintiffs on the basis that their claims

are now moot.

Legal Standards

A class action is “‘an exception to usual rule that litigation is conducted by and

on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). A

plaintiff seeking class certification must affirmatively demonstrate that the

requirements of Federal Rule of Civil Procedure 23(a) and (b) are satisfied. Wang v.

Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013).

Under Rule 23(a), the plaintiff must satisfy four prerequisites: (1) numerosity,

meaning that the class is so numerous that joinder of all members is impracticable;

(2) commonality, meaning that there are questions of law or fact common to the class;

(3) typicality, meaning that the claims or defenses of the representative parties are

typical of the claims or defenses of the class; and (4) that the representative parties

will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).

After showing that each of the Rule 23(a) prerequisites is satisfied, the party

seeking class certification must then establish “through evidentiary proof at least one

of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). In

this case, Plaintiffs seek class certification under Rule 23(b)(2), which requires a

showing that “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).

“Rule 23 does not set forth a mere pleading standard.” Wal-Mart, 564 U.S. at

350. Instead, the court conducts a “rigorous analysis” to determine whether a

plaintiff has satisfied the certification standards by a preponderance of the evidence.

Id. at 350-51. In conducting this analysis, the court considers the pleadings and

extrinsic evidence to determine whether certification is appropriate. See Blackie v.

Barrack, 524 F.2d 891, 900-01 (9th Cir. 1975). Although the analysis is not primarily

focused on the merits of the plaintiff’s underlying claim, there is frequently some

overlap. Comcast Corp., 569 U.S. at 33-34. The Ninth Circuit has cautioned that this

analysis is not in the nature of “a mini-trial” and emphasized that a court’s “inquiry

on a motion for class certification is tentative, preliminary, and limited.” Sali v.

Corona Reg. Medical Center, 909 F.3d 996, 1004 (9th Cir. 2018) (internal quotation

marks and citations omitted). While merits questions are “not irrelevant to the class

certification inquiry, [they] do not preclude certification as a matter of law unless

proving the answer to a common question or crafting uniform injunctive relief will be

impossible.” B.K. by Tinsley v. Snyder, 922 F.3d 957, 973 (9th Cir. 2019).

Background

A. The Parties

The Oregon Department of Human Services (“DHS”) is an agency of the State

of Oregon which has responsibility for the Child Welfare Agency (“Child Welfare”), a

subdivision of DHS. Compl. ¶ 26. Child Welfare acts as DHS’s agent in protecting

the safety and welfare of children. Id. at ¶ 28.

The named Plaintiffs are youths in the custody of DHS and are housed,

variously, in foster homes or in facilities contracted for by DHS. Compl. ¶¶ 17-24.

Plaintiffs bring claims on behalf of themselves and on behalf of a class consisting of

all children for whom DHS has or will have legal responsibility and who are or will

be in the legal and physical custody of DHS (the “General Class”). Id. at ¶ 33(a). In

addition, Plaintiffs seek to bring claims on behalf of three subclasses:

(1) Children who have or will have physical, intellectual, cognitive, or mental

health disabilities (the “ADA Subclass”);

(2) Children who are or will be 14 years old and older, who are eligible for

transition services and lack an appropriate reunification or other permanency

plan (the “Aging-out Subclass”); and

(3) Children who identify as sexual or gender minorities, including lesbian, gay,

bisexual, queer, transgender, intersex, gender non-conforming, and non-

binary children (the “SGM Subclass”)1.

1 Plaintiffs have indicated that they prefer to use the term “Sexual and Gender Minorities” or “SGM”

to refer to individuals within this sub-class, rather than LGBTQ. Compl. ¶ 15(f), n.1. The Court will

apply Plaintiffs’ preferred terminology in this Opinion.

B. DHS

The Office of Child Welfare is one of the “five key human services programs”

within DHS and is administered across the state through districts and field offices

covering every county in the state. Lowry Decl. Ex. 1, at 5-6.

Reports of child abuse and neglect are screened through a DHS hotline and,

after review, are referred to Child Protective Services (“CPS”) caseworkers for

investigation. Lowry Decl. Ex. 1, at 7. If the CPS caseworker determines that abuse

or neglect has occurred, the case worker may (1) decide to close the investigation

because the child is safe; (2) open the case and implement an in-home safety plan; or

(3) remove the child from the home. Id. (citing ORS 409.050 and ORS 418.005).

“Once removed, the child enters state custody and is assigned a permanency

caseworker to manage and monitor the case,” and “the child may be placed back in

the home with a period or caseworker monitoring, though most are placed with foster

families or relatives.” Lowry Decl. Ex. 1, at 7. “High needs” children may “be placed

in more restrictive institutional settings or behavior rehabilitative programs.” Id.

“After leaving state custody, the child may be returned to their home, become

available for adoption through foster care, or enter long-term foster care or

guardianship.” Id. In selecting the placement for a child in care, the caseworker

assesses whether the placement meets the child’s needs for physical and emotional

safety, stability, and continuity. Lowry Decl. Ex. 7, at 67-69.

The Oregon circuit courts decide “whether and how long a child stays in state

custody.” Lowry Decl. Ex. 1, at 7; ORS 419B.337(1). The circuit court “may specify

the particular type of care, supervision or services to be provided by the Department

of Human Services to wards placed in the department’s custody and to the parents or

guardians of the wards, but the actual planning and provision of such care,

supervision or services is the responsibility of the department.” ORS 419B.337(2);

see also ORS 419B.337(5) (“If the ward has been placed in the custody of the

Department of Human Services, the court shall make no commitment directly to any

residential facility, but shall cause the ward to be delivered into the custody of the

department at the time and place fixed by the rules of the department.”).

The role of child welfare caseworkers in the process is essential, with different

types of caseworkers covering initial screening of reports, investigations, permanency

management, certification of foster homes, and managing the adoption process.

Lowry Decl. Ex. 1, at 8-9. A 2018 Audit of DHS by the Oregon Secretary of State

found that turnover and overtime were high for DHS caseworkers, with reported

caseloads three or four times the optimal numbers. Lowry Decl. Ex. 1, at 43. The

workloads exacerbated staff turnover and inhibited recruitment and, in 2016, the

caseworker turnover rate was 23%. Id. New and inexperienced caseworkers are

forced to take on full caseloads and, in 2018, approximately one third of Child Welfare

staff were in their first 18 months on the job. Id.

DHS has struggled to recruit and retain foster homes and staffing shortages

within DHs have, at times, forced foster parents to take on duties normally assigned

to caseworkers. Lowry Decl. Ex. 1, at 28. The number of career foster homes in

Oregon declined by 55% between 2011 and 2016 as DHS shifted to recruitment of

relative foster homes. Id. at 29. Limited access to foster care placements has resulted

in “some of Oregon’s highest need children” being “moved from place to place” and

sometimes ending up “housed by DHS in hotels because there is nowhere else for

them to go.” Id. at 28.

C. Plaintiff’s Allegations

The Complaint alleges that Oregon’s child welfare and foster care systems are

dysfunctional and plagued by systemic deficiencies. These deficiencies have been

documented by the state and federal governments in a series of reviews and audits.

Compl. ¶¶ 209-224. Plaintiffs allege that the problems identified in the audits have

not been adequately addressed.

Plaintiffs allege that DHS fails to employ a minimally adequate number of

caseworkers and that caseworkers are not provided with adequate training or

support. Compl. ¶¶ 15(a), 231. Caseworkers are assigned more cases than they can

manage, with little training or oversight. Id. at ¶ 230-31. As a result, DHS has

difficulty retaining caseworkers and turnover is high. Id. at ¶ 232.

Plaintiffs allege that DHS has failed to provide adequate support, training, or

financial compensation to foster parents. Compl. ¶¶ 15(g). DHS has also failed to

recruit additional foster parents in general and particularly foster parents willing

and able to care for children with disabilities. Id. at ¶¶ 15(g), 221.

Plaintiffs allege that DHS does not properly evaluate the needs of each child,

which prevents caseworkers from planning appropriate placements. Compl. ¶¶ 15(b),

236. Children do not receive services required by their case plans, either because

DHS fails to provide the services directly, or fails to contract for those services. Id.

at ¶ 236.

When children are taken into custody, they are often left in temporary

placements or are repeatedly moved between foster homes and institutions. Compl.

¶ 15(c). Children are placed in hospitals, homeless shelters, refurbished delinquency

institutions, overcrowded temporary general foster care homes, or in poorly screened

child-specific kith or kin foster homes. Compl. ¶¶ 15(d), 247. Children in DHS care

experience abuse and neglect at rates much higher than national standards. Compl.

¶¶ 251-254.

Children with disabilities are not provided with appropriate services and

treatment to ensure equal access to stable, family-like foster placement in the least

restrictive environment. Compl. ¶ 15(e). SGM children are often deprived of safe and

stable placement. Id. at ¶¶ 15(f), 222. Children often remain in DHS custody for

years and older children are not provided with support, skills, or resources necessary

to survive on their own when they leave foster care. Id. at ¶ 15(h), (i). When those

children age out of the child welfare system, they frequently end up homeless. Id. at

¶ 250.

D. Audits and Reviews of DHS

There have been a number of reviews and audits of DHS between 2016 and

2020, conducted by federal authorities, Oregon state auditors, and independent

consulting agencies. The relevant findings of these reviews are summarized below.

1. 2016 CFSR Review

In 2016, the Children’s Bureau, within the U.S. Department of Health and

Human Services’ Administration for Children and Families, issued a Child and

Family Services Review for the State of Oregon. Lowry Decl. Ex. 8 (the “CFSR”).

ECF No. 67-2. The purpose of the CFSR is to enable the Children’s Bureau to

determine the state of child welfare services, ensure conformity with federal child

welfare regulations, and “assist[ ] states in enhancing their capacity to help children

and families achieve positive outcomes.” CFSR, at 3.

In a series of assessments of performance outcomes, the CFSR concluded that

DHS was not in substantial conformity with children receiving adequate services to

meet their physical and mental health needs, CFSR, at 16-17; with staff and provider

training, id. at 20-21; with service array and resource development, id. at 22-23; and

with the licensing, recruitment, and retention of foster parents, id. at 24-26.

The CFSR noted that a “shrinking pool of foster homes has led to the inability

to consistently match placement options with the needs of children entering foster

care.” CFSR, at 5. “Due to this shortage of foster homes, placement decisions appear

to be driven, at times, by foster home availability, rather than the needs of the child.”

Id. at 5-6. For caseworkers, the CFSR found that “training is not effectively preparing

staff for their duties,” with most surveyed respondents reporting that “they were not

well-prepared for their job duties after initial training.” Id. at 21.

2. 2016 Public Knowledge Report

In 2016, Oregon Governor Kate Brown commissioned an independent review

of Oregon’s foster care system by Public Knowledge, LLC. Lowry Decl. Ex. 9 (the

“2016 Public Knowledge Report”). ECF No. 67-2. The 2016 Public Knowledge Report

was released in September 2016. Among other findings, the 2016 Public Knowledge

Report concluded that there was a shortage of appropriate placements, resulting in

placement decisions being driven by availability, “rather than the needs of children

and youth.” Id. at 18. The Report found that Oregon’s placement capacity for high-

needs children was inadequate to meet demands and was shrinking. Id. at 20. The

consequence of this shortage was “inappropriate placements leading to negative

outcomes, including safety issues.” Id. at 23. The Report noted a lack of

comprehensive statewide recruitment, retention, and support for substitute care

providers, “which results in inconsistent and inadequate efforts to sustain and grow

placement options of all types.” Id. at 46.

The Report also noted the importance of placing SGM youth “with substitute

caregivers who understand and support them,” which “enhances their safety and

overall experience in care.” 2016 Public Knowledge Report, at 49. However,

participants in the Report’s focus groups and surveys “cited instances of LGBTQ

youth in a non-supportive environment being threatened by foster parents and other

youth in the home, and experiencing isolation and depression resulting in self-harm

and behavioral problems.” Id. Participants reported “a lack of LGBTQ-related

training for foster parents and DHS staff, making it difficult for these children to

connect to necessary services.” Id.

The Report highlighted issues in staffing, noting that “CPS staff workloads are

a critical factor affecting the quality, accuracy, and timeliness of child safety

decisions,” but that survey and focus groups in Oregon “universally indicated that

unreasonably high caseloads and inadequate staffing across agencies in the System

are the reason key safety information falls through the cracks.” 2016 Public

Knowledge Report, at 45. Foster parents and youth reported that “high turnover and

infrequent face-to-face contact makes it difficult for children and youth to build trust

with the caseworker,” making it less likely that the children in care would report

safety issues. Id. The Report noted that national standards recommended between

12 and 15 children per child welfare caseworker, but found that DHS did not track

caseloads and the “activity-based workload allocation model shows DHS caseworkers

as being able to complete only 83% of the needed work.” Id. at 64.

The 2016 Public Knowledge Report made a series of recommendations,

including expanding placement options; increasing non-congregate care placement

alternatives for high-needs youth; adopting data-driven decision-making processes;

and increasing the staff for CPS and other DHS entities. 2016 Public Knowledge

Report, at 50.

3. 2018 Oregon Secretary of State Audit

In January 2018, the Oregon Secretary of State issued an audit of the Oregon

foster care system entitled “Foster Care in Oregon: Chronic management failures and

high caseloads jeopardize the safety of some of the state’s most vulnerable children.”

Lowry Decl. Ex. 1 (the “2018 Audit”). ECF No. 67-1. The 2018 Audit summarized its

key findings as follows:

1. DHS and Child Welfare struggle with chronic and systemic

management shortcomings that have a detrimental effect on the

agency’s ability to protect child safety. Management has failed to

address a work culture of blame and distrust, plan adequately for costly

initiatives, address the root causes of systemic issues, use data to inform

key decisions, and promote lasting improvements. As a result, the child

welfare system, which includes the foster care program, is disorganized,

inconsistent, and high risk for the children it serves.

2. DHS does not have enough foster placements to meet the needs of at-

risk children, due in part to a lack of a robust foster parent recruitment

program. The agency struggles to retain and support the foster homes

it does have within its network. The agency also lacks crucial data

regarding how many foster placements are needed and the capacity of

current foster homes, inhibiting the agency’s ability to fully understand

the scope of the problem.

3. A number of staffing challenges compromise the division’s ability to

perform essential child welfare functions. These challenges include

chronic understaffing, overwhelming workloads, high turnover, and a

large proportion of inexperienced staff in need of better training,

supervision, and guidance.

2018 Audit, at 3.

DHS is subject to a Federal Child and Family Services Review, done

approximately every six years, which is aimed at assessing “the overall ability of the

child welfare system to serve and protect vulnerable children.” 2018 Audit, at 10.

The 2018 Audit noted that “[h]istorically, Oregon has not done well on these measures

and his gotten worse over time.” Id. The 2016 Review found “inconsistent application

of procedures, across the state during the investigatory process”; a “lack of follow-up

on allegations of abuse of children in foster care”; “confusing DHS investigatory rules,

policies, and processes”; and “a lack of coordination among the multiple entities

responsible for responding to allegations of abuse and neglect.” Id.

The 2018 Audit noted a steady decline in the number of career foster homes

available in the state between 2011 and 2016, as well as a contraction in the number

of available beds in institutional settings. 2018 Audit, at 29-31. As a result of the

loss of placement options, the 2018 Audit found that placement decisions were being

made based on availability, rather than fit, and highlighted the risks of inappropriate

placements for children in DHS care. Id. at 32. The 2018 Audit also found that a

lack of placement options had forced caseworkers to house children in hotels and that

“hoteling” children had “transitioned from a rare emergency occurrence to an

increasingly accepted practice within the agency.” Id. at 39.

As for caseworkers, the 2018 Audit found that to meet its current needs DHS

would need to increase field staff positions by 35%, requiring the hiring, training, and

retention of 769 additional field staff. 2018 Audit, at 43. The 2018 Audit also

highlighted its finding that DHS worker caseloads exceeded the recommended

maximums. Id. at 46. Caseworkers struggled to meet “unrealistic” demands,

incurring considerable overtime work. Id. at 49. Medical leaves for stress and

burnout were high, with 25% of child welfare caseworkers leaving their positions in

2016. Id. Caseworkers reported suffering intimidation and bullying by DHS

management, and concerns for their personal safety while on the job. 2018 Id. at 53.

The 2018 Audit concluded by making 24 specific recommendations for action,

covering proposed improvements to DHS management; management, recruitment,

and retention of foster care homes; and to correct chronic understaffing,

“overwhelming caseloads,” and high turnover. 2018 Audit, at 60-63.

4. 2019 Oregon Secretary of State Follow-up Report

In June 2019, the Oregon Secretary of State Audits Division released a

Recommendation Follow-up Report (the “2019 Report”) detailing steps taken by DHS

in response to the 2018 Audit. Lowry Decl. Ex. 15. The 2019 Report found that DHS

had fully implemented 8 of the 24 recommendations and that it had made progress

on the remaining recommendations. Id. at 2.

In particular, the 2019 Report found that there had been considerable turnover

in DHS management following the 2018 Audit and that the new agency management

had “improved staff training, data use and caseworker assistance,” as well as making

stronger efforts “to identify and address the concerns of field staff.” 2019 Report, at

4. The 2019 Report also noted that “DHS has taken meaningful steps toward

improving its culture and addressing management practices that have hampered the

agency’s performance for many years.” Id. However:

The agency also faces continued risks. Caseloads remain high and

caseworker staffing is low, as is adherence to required child safety

practices in the field. A new centralized abuse reporting hotline has

substantial transition issues, including inexperienced workers and

dropped calls . . . The agency has a long history of poorly planned and

implemented initiatives that new management must overcome.

Without additional staff to reduce workload, other efforts to improve

culture, field staff practices, and child safety could be compromised.

2019 Report, at 4.

With respect to the recruitment and retention of foster homes, the 2019 Report

noted that DHS had taken “some steps” to remediate the issues identified in the 2018

Audit, but that “the total number of foster homes has not increased since our audit.”

2019 Report, at 11. “The ongoing lack of appropriate foster placements in Oregon is

a serious risk to the safety and wellbeing of children in the foster system,” and that

more high-needs children “are being placed in out-of-state facilities and repurposed

juvenile detention facilities than in previous years.” Id. at 12. As noted in the 2018

Audit, the 2019 Report found that these placement decisions continued to be “driven,

in part, by declining residential treatment options in Oregon for children with high

needs.” Id. The 2019 Report also noted shortfalls in available placements for children

with specific needs, including “children of color, [LGBTQ+] youth, and children with

advanced behavioral and medical challenges.” Id.

5. 2020 Oregon Secretary of State Audit

The Oregon Secretary of State released another audit in July 2020 entitled

“Oregon Can More Effectively Use Family Services to Limit Foster Care and Keep

Children Safely at Home.” Joyce Decl. Ex. 1 (the “2020 Audit”). ECF No. 129-1. The

2020 Audit noted that the Child Welfare Office’s budget had increased over four

successive biennia and that DHS planned to hire additional staff to reduce

caseworker workloads. 2020 Audit, at 5-6. The overall number of children entering

foster care declined in the years leading up to the 2020 Audit, despite an increase in

calls to the child abuse hotline and referrals for investigation. Id. at 13.

However, the 2020 Audit found that many of the previously identified issues

remained. The 2020 Audit noted that 41% of children in Oregon foster care had

already had three or more placements as of May 2020. 2020 Audit, at 9. “Oregon

places more children into foster care, children re-enter foster care at a higher rate,

and wait times for services are longer than the national average,” and Oregon’s

maltreatment recurrence rate “was more than double the national average in 2017.”

Id. at 12. The 2020 Audit reported that “long-term outcomes for foster children are

relatively poor and extend well into adulthood, particularly for those who age out of

the system without a permanent home,” and studies found “higher rates of

imprisonment, mental health disorders, unemployment, and homelessness, among

other measures.” Id. at 9.

As with the prior audit and report, the 2020 Audit found that high caseloads

and turnover rates for caseworkers were a serious issue. 2020 Audit, at 20. Despite

increases in staffing for DHS, the number of caseworkers still fell below national

standards and DHS did not have accurate caseload data. Id. Although DHS hired

327 new caseworkers between February 2019 and February 2020, those gains were

offset by 62 promotions and 137 caseworkers leaving the agency, reducing the net

gain to only 128 new caseworkers in the field. Id.

E. The Named Plaintiffs

There are ten Named Plaintiffs in this case: Wyatt B., Noah F., Kylie R., Alec

R., Unique L., Simon S., Ruth T., Bernard C., Naomi B., and Norman N.

1. Wyatt B. and Noah F.

Wyatt B. and Noah F. are half-brothers. Stieb-Rideout Report, at 17. Wyatt

was born premature and suffers from a heart condition, which is controlled by

medication. Id. at 20. Wyatt and Noah entered DHS care in September 2018,

following numerous hotline reports alleging domestic violence, drug use, and neglect

by their parents. Id. at 20-22.

Between September 2018 and October 2018, Wyatt and Noah experienced

“multiple moves, apparently due to DHS’s lack of sufficient foster families and

inability to identify a suitable relative caregiver.” Stieb-Rideout Report, at 23-24.

The brothers were returned home for trial reunification on October 4, 2018, but were

returned to DHS care on November 26, 2018 after their mother failed to adhere to

conditions of their return. Id. at 24. Since entering out-of-home DHS care in

November 2018, Noah experienced 8 different placements and Wyatt experienced 16

different placements. Id. at 18. Records for Noah and Wyatt’s placements indicate

“sketchy and inconsistent” communication between and among the caseworkers and

caregivers. Id. at 37-38. “No written instructions for the children’s medical care were

provided and the foster mother in their third placement mistakenly understood that

Wyatt’s heart medications were to be given to Noah.” Id. at 38. The

misunderstanding was not discovered until the children were moved two weeks later.

Id.

Wyatt and Noah are members of the proposed General Class.

2. Kylie R. and Alec. R.

Kylie R. and Alec R. are siblings who first came to DHS attention in May 2010

when a police officer made a hotline report that Alec, then only a few months old, had

been left alone in a car by his grandmother. Stieb-Rideout Report, at 41. DHS

received multiple reports concerning Alec and Kylie in 2018 and the children were

taken into DHS custody in January 2019. Id. at 44. At the time they entered DHS

care, both children tested positive for methamphetamine and each had a severe case

of head lice. Id. Kylie and Alec had six separate placements between January 18,

2019 and February 22, 2019. Id. at 44-45. Kylie exhibited concerning outbursts while

in foster care and, while in the care of the sixth foster home, Kylie was taken to the

emergency room due to repeatedly banging her head against a door jamb. Id. at 46.

Following this incident, Kylie was sent to a subacute treatment facility in Portland,

while Alec remained with the foster family. Id. at 47-48. In late February, the CASA

advocate assigned to Kylie and Alec made a formal complaint concerning their

placement with the sixth foster home, which was not equipped to provide the level of

care Kylie required, and asserted that “the foster parent had received ‘no historical

information about the children’ and ‘did not even know their last names’ when they

had had to take Kylie to the emergency room.” Id. at 48. This assertion was disputed

by DHS, but it was later revealed that the foster parents were not informed that the

children had tested positive for methamphetamine when they entered care and that

this information had similarly not been disclosed to the children’s pediatrician. Id.

at 51.

Kylie and Alec are members of the proposed General Class.

3. Unique L.

Unique L. was taken into DHS custody in 2009 as an infant and was in foster

care from the age of six weeks to nine months, although she was later reunited with

her mother. Stieb-Rideout Report, at 65, 72. In February 2016, DHS petitioned for

custody of Unique and her siblings, although it did not initially take physical custody

of the children and instead pursued an in-home safety plan while they remained with

their mother. Id. at 69. Unique was placed in the Jasper Mountain SAFE Center for

crisis assessment and stabilization in July 2016 after she assaulted her younger

sisters. Id. at 77. Unique returned home but was removed for three additional crisis

stays at SAFE in July and August 2016. Id. at 77-78. After being discharged from

SAFE in August 2016, Unique was placed at a TFC foster home in Southern Oregon,

some three hours from her family. Id. at 78. Unique was returned to her mother’s

care in May 2018, but conflict with her mother resulted in Unique being taken to a

SAFE crisis center only days later. Id. at 80-81. Unique was moved to a foster home

and then to a TFC overseen by Oregon Community Programs. Id. at 81. Unique

displayed violent and destructive behavioral outbursts while in care, which resulted

in her being transported to the hospital and then to a SAFE center. Id. at 82. The

nature of these outbursts required the repeated use of holds on Unique. Id. Unique

was transferred to a subacute crisis center in August 2018 and diagnosed with PTSD.

Id. at 82-83. Upon discharge, DHS was unable to locate a long-term residential care

placement for Unique in Oregon and she was ultimately placed at an out-of-state

facility in Montana in November 2018. Id. at 83. DHS became concerned by the

Montana facility’s use of chemical restraints, in the form of injectable Benadryl and

Vistaril, on children in its care, including Unique, and abruptly returned Unique to

Oregon in April 2019, where she was housed at a residential facility in Portland. Id.

at 84-85. Between 2016 and 2019, Unique experienced 10 placements while in DHS

care, 5 of which were residential treatment facilities. Id. at 62.

Unique is a member of the proposed General Class and of the proposed ADA

Subclass.

4. Simon S.

Simon S. first came to DHS attention following reports by school staff

expressing concerns of potential abuse in 2011. Stieb-Rideout Report, at 94. DHS

took custody of Simon and his younger sister in February 2012 “based on neglect in

that the parents were unable to prevent the succession of injuries which Simon had

incurred.” Id. Simon experienced significant behavioral problems at the time of the

initial interventions and was enrolled in special education services based on

emotional disturbance. Id. Simon was placed in relative foster care from February

2012 through August 2012 before being moved to a residential treatment facility. Id.

at 93. Simon was returned to his family in December 2012. Id. at 95.

DHS received multiple reports of abuse and in 2014 and early 2015 and Simon

returned to DHS custody in June 2015. Stieb-Rideout Report, at 96-97. Simon was

eventually placed in a SAFE center where he received mental health treatment and

was ready for discharge in late 2018, but DHS determined that it was not appropriate

for Simon to return home and no suitable placement could be found for him. Id. at

98. Simon was placed with his grandmother in March 2019, but she was unable to

manage his behavioral issues and, at the time of the motion, Simon was living in a

hotel with his father. Id. at 99.

Simon has experienced three separate episodes of time in foster care—from

February to December of 2012; from June of 2015 through April of 2016; and from

December of 2017 through the date of the motion. Stieb-Rideout Report, at 93-94.

Simon is a member of the proposed General Class and the proposed ADA

Subclass.

5. Ruth T.

Ruth T. first came to DHS’s attention when she was three years old due to her

mother experiencing a mental health crisis. Stieb-Rideout Report, at 112-13. DHS

was sporadically involved with Ruth’s family between 2009 and 2015, after which

contact became more frequent. Id. at 114. Ruth experienced behavioral issues and,

by 2016, she was only attending school part time due to her behavior. Id. Ruth was

diagnosed with oppositional defiant disorder (“ODD”) and attention deficit

hyperactivity disorder (“ADHD”). Id. at 118. Ruth and her brother were taken into

DHS care in 2017 after their mother passed away from a drug overdose. Id. at 120-

21.

Ruth was initially placed with her maternal grandparents in April 2017 but

was removed from that placement after accusing her grandmother of abuse. Stieb-

Rideout Report, at 129-31. Ruth was then placed in an unrelated foster home before

being removed less than a month later at the request of the foster parents based on

her behavior. Id. at 132. Ruth was placed in a “hotel diversion” bed with a family in

Eugene, Oregon but was removed when Ruth threatened the foster mother and

another child with scissors and attacked another child. Id. Ruth was moved to

Creekside Residential Care, an Oregon shelter facility that had been converted from

a juvenile detention center to a residential treatment center. Id. Ruth’s behavioral

issues persisted while at Creekside and escalated to the point of law enforcement

intervention and Creekside issued a thirty-day notice for her removal to DHS. Id. at

133. DHS was unable to find an appropriate placement for Ruth in Oregon and Ruth

was placed at a residential treatment facility in Iowa which specialized in treating

teenaged girls with trauma and behavioral issues. Id. Ruth continued to experience

behavioral issues while at the Iowa facility, including threats to staff and peers. Id.

at 134. Ruth’s maternal grandparents remained engaged and supportive and, in May

2019, Ruth returned to Oregon and was placed in the care of her grandparents. Id.

at 112.

Ruth is a member of the proposed General Class and the proposed ADA

subclass.

6. Bernard C.

Bernard C. is a transgender youth who came to DHS attention early in his life.

Stieb-Rideout Report, at 146. Bernard’s family was the subject of 45 hotline reports

to DHS between 2000 and 2013. Id. At the age of three, Bernard was placed in the

care of his maternal great-grandparents, and he remained in their care until his

great-grandmother passed away when Bernard was nine years old. Id. at 147. At

that point, Bernard returned to his mother’s care, despite his mother’s parental rights

having been terminated some years earlier. Id. at 147, 153. Bernard re-entered DHS

custody in 2013 at the age of ten. Id. at 147. By the age of twelve or thirteen, Bernard

identified as male. Id. at 148.

By the age of thirteen, Bernard was diagnosed with major depressive disorder,

PTSD, reactive attachment disorder, social anxiety disorder, and emerging borderline

traits. Stieb-Rideout Report, at 148. At the time of the motion, Bernard had

experienced 19 placements of varying types. Id. In March 2016, when Bernard was

twelve years old, he was placed at Creekside, an Oregon shelter facility that had been

converted from a juvenile detention center to a treatment facility. Id. at 159.

Creekside was an all-girls facility and Bernard, who was then alternating between

identifying as male and identifying as female, struggled with the placement. Id. at

159-60.

In May 2016, Bernard was placed at White Shield/Wildflowers, a girls’

residential facility. Stieb-Rideout Report, at 160. Bernard made his gender identity

known on his first day at the facility and in June 2016, Bernard filed a grievance

because staff failed to refer to him as male. Id. Bernard’s mental health “appears to

have deteriorated greatly by this time,” and he expressed suicidal ideation. Id. at

160-61. Staff noted that Bernard was unable to access transgender-related services

due to “insurance barriers.” Id. at 161.

In February 2017, Bernard was placed at a specialized foster home for

transgender youth in Grants Pass but was removed from the placement two weeks

later when he made unfounded allegations of abuse against his foster mother. Stieb-

Rideout Report, at 163. After several subsequent short-term placements, DHS placed

Bernard at a “very LGBTQ-capable foster home,” in March 2017 (Bernard’s fifteenth

placement since entering care in November 2013) and Bernard was able to access

gender-affirming medical treatment. Id. In May 2017, DHS took steps to legally

change Bernard’s name and gender. Id. at 164.

Bernard’s foster parents were transferred out of state and Bernard, concerned

about leaving Oregon, declined to join them. Stieb-Rideout Report, at 164. Bernard

was placed in another foster home in July 2017. Id. Following an incident at school

in January 2018, Bernard was briefly hospitalized and spent three weeks in the care

of the Perry Center. Id. at 165. In July 2018, Bernard’s caseworker made efforts to

locate a therapeutic or residential program for Bernard in Oregon but was unable to

find a placement for Bernard. Id. at 166. Bernard was eventually placed at

Robinswood, a temporary shelter with a “partial hospitalization” program. Id.

Bernard was eventually admitted to a therapeutic placement through Boys and Girls

Aid in December 2018. Id. at 167.

Between November 2013 the filing of the motion, Bernard had 21 placements

and attended 10 different school. Stieb-Rideout Report, at 167.

Bernard is a member of the proposed General Class, the proposed ADA

Subclass, the proposed SGM Subclass, and the proposed Aging-Out Subclass.

7. Naomi B.

Naomi B. entered DHS care in November 2018 after running away from home

and being hospitalized. Stieb-Rideout Report, at 179-80. Initially, DHS

unsuccessfully sought a therapeutic foster home for Naomi, and she was eventually

placed at a youth shelter in late November 2018. Id. at 181. Naomi moved from the

shelter to the Creekside treatment facility in December 2018. Id. at 182. Naomi was

returned to the youth shelter, but repeatedly ran away in December 2018 and

January 2019. Id. at 183. In late January 2019, Naomi was placed with the Youth

Inspiration Program (“YIP”) in Klamath Falls. Id. YIP was a facility “designed for

delinquent youth.” Id. at 179. Naomi was not on probation or parole and was at YIP

“only because DHS has no other place to house her” while waiting approval for her to

move to Idaho with her mother. Id. at 184. YIP used procedures such as lockdowns

and strip searches even for child welfare residents like Naomi. Id. at 185-86.

Naomi ran away from YIP in late January 2019 and was found the next day.

Stieb-Rideout Report, at 184. Naomi’s treatment plan included upgrading to a crisis

safety agreement after Naomi engaged in acts of self-harm. Id. Naomi’s child welfare

attorney raised complaints about conditions at YIP, which led DHS to inspect the

facility and remove Naomi and all other DHS wards from YIP in late March 2019.

Id. at 185-86.

Naomi was returned to the youth shelter but ran away in April 2019 and

remained on her own for several days. Stieb-Rideout Report, at 186. Naomi was

placed with a foster family, but again ran away in a matter of days. Stieb and Rideout

Report, at 186. Another foster home placement was found for Naomi in Polk County,

beginning on April 22, 2019 but Naomi ran away on May 6, 2019. Id. Naomi returned

to the Polk County foster home but ran away again days later and the foster parents

declined to take her back when she returned on her own. Id.

Naomi returned to the youth shelter in Corvallis but ran away repeatedly.

Stieb-Rideout Report, at 187. During this period, Naomi was briefly hospitalized on

a mental health hold. Id. In April 2019, DHS’s request to place Naomi with her

mother in Idaho was denied based on concerns about Naomi’s mother. Id. Naomi

was admitted a psychiatric residential treatment facility in May 2019. Id. at 188.

During seven months, Naomi moved approximately 16 times, including 4 emergency

hospitalizations, and 7 stays in youth shelters. Id. at 179.

Naomi was, at one point, prescribed anti-psychotic medication to treat

hallucinations and intrusive thoughts. Stieb-Rideout Report, at 184. Naomi has been

diagnosed with major depression, anxiety disorder, and PTSD. Id. at 185.

Naomi is a member of the proposed General Class, the proposed ADA Subclass,

and the proposed Aging-Out Subclass.

8. Norman N.

Norman has had four separate periods of time in DHS care, although one of

those periods lasted less than one week. Stieb-Rideout Report, at 192-94, 203. DHS

was involved with Norman’s siblings prior to Norman’s birth and, after Norman was

born, DHS received 28 reports concerning Norman or his siblings. Id. at 195.

Norman initially entered DHS Custody in January 2006. Id. During his time in care,

Norman experienced numerous placements including multiple placements in

residential treatment facilities and with foster families. Id. at 192-94.

Norman showed progress while placed in a SAFE facility in 2013 and that he

would benefit from a therapeutic foster care placement as the only child, rather than

placement in a group home or institutional setting, which would lead to regression.

Stieb-Rideout Report, at 208. Norman was discharged from the SAFE facility in June

2013, without any plan for placement. Id. at 209. Norman’s therapist objected,

noting that “it appeared that the decision to move him before firm transition plans

were made was related to funding more than to Norman’s mental health needs.” Id.

Norman’s caseworker made dedicated efforts to secure placement for Norman but

was unable to find a place for him. Id. at 209-10. Ultimately, Norman was placed

with a regular foster home in August 2013, because “there were no beds available

through therapeutic foster care programs and [Norman] was too young for most

residential programs.” Id. at 210. In the following months, Norman went through a

series of foster home placements that terminated when Norman engaged in

destructive and threatening behavior. Id. Norman was eventually hospitalized for a

psychiatric assessment, but when he was ready for discharge on September 15, 2013,

his DHS caseworker told hospital staff that DHS had no placement available for him

and that he would be sleeping on an office couch if discharged. Id. at 210-11. The

hospital agreed to keep him temporarily and the next day, DHS was able to locate a

placement at a psychiatric residential facility. Id. at 211. A series of unsuccessful

placements followed, and DHS sought to place Norman in a specialized treatment

facility in Idaho in 2017. Id. at 215. Norman’s behavioral issues continued at the

Idaho facility, resulting in criminal charges and Norman’s discharge from the facility

in June 2018. Id. at 216. On return to Oregon, Norman was placed in St. Mary’s

Home for Boys in July 2018. Id. While there, Norman’s mother returned from out of

state and engaged in treatment with Norman. Id. at 216-17. In July 2019, Norman

was discharged from St. Mary’s and was living with his mother. Id. at 217.

Norman has been consistently diagnosed with PTSD and ADHD, although

there have been diagnoses indicating other potential mental health issues. Stieb-

Rideout Report, at 203.

Norman is a member of the proposed General Class, the proposed ADA

Subclass, and the proposed Aging-Out Subclass.

Motions to Dismiss as Moot

Since the filing of this case, the circumstances of many of the named Plaintiffs

have changed. In the case of brothers Wyatt B. and Noah F., these changes are happy

ones—they have been permanently adopted and are no longer in the care of DHS.

Wilson Decl., ECF No. 269. Plaintiffs Naomi B., Kylie R., Alec R., Norman N., and

Ruth T., Unique L., and Simon S. have likewise left DHS care, generally through

being reunited with a parent or other guardian. Blaesing Decl., ECF No. 110;

Blaesing Decl., ECF No. 231. In addition, Plaintiffs Norman N., Naomi B., and Ruth

T. have aged out of DHS care. Blaesing Decl. Ex. 5, at 2, ECF No. 110-5; Bennett

Decl., ECF No. 185; Bennett Decl., ECF No. 222.

Defendants assert that the changed circumstances of these named Plaintiffs

render their claims moot and subject to dismissal. The doctrine of standing addresses

whether party invoking federal court jurisdiction has “[t]he requisite personal

interest” in the outcome of the case “at the commencement of the litigation.” Blair v.

Shanahan, 38 F.3d 1514, 1519 (9th Cir. 1994) (internal quotation marks and citation

omitted). The doctrine of mootness addresses whether a party’s personal interest

“continue[s] throughout [the litigation’s] existence.” Id. (internal quotation marks

and citations omitted). In other words, “mootness [is] ‘the doctrine of standing set in

a time frame.’” Id. at 1518-19 (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S.

388, 397 (1980)).

The doctrine of mootness requires that “an actual, ongoing controversy exist at

all stages of federal court proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081,

1086 (9th Cir. 2011). “Whether the dispute between the parties was very much alive

when the suit was filed . . . cannot substitute for the actual case or controversy that

an exercise of this [c]ourt’s jurisdiction requires.” Id. (internal quotation marks and

citation omitted). A case is moot “when the issues presented are no longer ‘live’ or

the parties lack a legally cognizable interest in the outcome” of the litigation. Powell

v. McCormack, 395 U.S. 486, 496 (1969). In a class action, the class claim “is not

automatically moot because the named representative’s claim is moot.” Kuahulu v.

Emps. Ins. of Wausau, 557 F.2d 1334, 1336 (9th Cir. 1977). “If the district court

certifies a class before the plaintiff’s claim becomes moot, ‘mooting the putative class

representative’s claim will not moot the class action.’” Slayman v. FedEx Ground

Package Sys., Inc., 765 F.3d 1033, 1048 (9th Cir. 2014) (quoting Pitts, 653 F.3d at

1090).

There is an exception to the normal rule of mootness, discussed above, for

claims that “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.” Pitts, 653 F.3d at 1090. “The ‘inherently transitory’

rationale was developed to address circumstances in which the challenged conduct

was effectively unreviewable, because no plaintiff possessed a personal stake in the

suit long enough for litigation to run its course.” Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 76 (2013).

Inherently transitory claims “will certainly repeat as to the class, either

because ‘[t]he individual could nonetheless suffer repeated [harm]’ or because ‘it is

certain that other persons similarly situated’ will have the same complaint.” Pitts,

653 F.3d at 1090 (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)). “Such

claims are ‘capable of repetition, yet evading review,’ and thus do not become moot.”

Slayman, 765 F.3d at 1048 (quoting Pitts, 653 F.3d at 1090). In these cases, the

district court may apply the “relation back” approach and certify the class even after

the named plaintiff’s claim becomes moot. Pitts, 653 F.3d at 1090; see also Cnty. v.

Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991) (holding that even though the

class was not certified until after the named plaintiffs’ claims had become moot,” the

district court still had jurisdiction because the class claim was inherently transitory);

Sosna v. Iowa, 419 U.S. 393, 401 (1975) (holding that the controversy “remains very

much alive for the class of persons [the named plaintiff] has been certified to

represent” even if it was “no longer alive as to” the named plaintiff); Wade v. Kirkland,

118 F.3d 667, 670 (9th Cir. 1997) (noting that if the named plaintiff’s claim is

inherently transitory, then “the action qualifies for an exception to mootness even if

there is no indication that [the named plaintiff] or other current class members may

again be subject to the acts that gave rise to the claim.”) (emphasis in original).

In this case, the Court is satisfied that the claims of the challenged Plaintiffs

are inherently transitory. It is the nature of foster care systems that children will be

in the care of the state for variable and sometimes unpredictable lengths of time, or

even pass in and out of the system. On an even more fundamental level, concerning

in particular the proposed Aging-out Subclass, children grow up. At a certain point,

they will age out of the care of foster system. These changes in circumstances may

happen before the Court has an opportunity to rule on the motion to certify the class.

The injuries claimed by the challenged Plaintiffs are repeatable to the class, if not

necessarily to the named Plaintiffs themselves, and the Court concludes that Plaintiff

has shown that the injuries claimed by the named Plaintiffs are certain to recur on

other similarly situated individuals. The Court therefore declines to dismiss the

challenged named Plaintiffs’ claims as constitutionally moot.

Defendants also contend that the challenged Plaintiffs should be dismissed

under the doctrine of prudential mootness. “Prudential mootness is a discretionary

doctrine that courts employ when a case is not moot under Article III of the U.S.

Constitution, but prudence suggests the court should treat the case as moot.” Coos

Cnty. of Oregon v. Bernhardt, Civ. No. 6:19-cv-00576-MC, 2020 WL 1430379, at *2

(D. Or. Mar. 23, 2020) (internal quotation marks and citation omitted). Although, as

Defendants point out, there are district court opinions from within this Circuit

applying the doctrine of prudential mootness, the Ninth Circuit has made clear that

it has “not adopted prudential mootness per se.” Maldanado v. Lynch, 786 F.3d 1155,

1161 n.5 (9th Cir. 2015). In Maldanado, the Ninth Circuit noted that “some of our

sister circuits have adopted the prudential mootness doctrine,” but that, in this

Circuit, “we have applied prudential mootness only in the bankruptcy context when

there are no assets left to distribute.” Id. (citing Hunt v. Imperial Merchant Servs.,

Inc. 560 F.3d 1137, 1142 (9th Cir. 2009) and Deutsche Bank Nat’l Trust Co. v. F.D.I.C.,

744 F.3d 1124, 1135 (9th Cir. 2014)). The implication of Maldanado is that dismissal

based on prudential mootness is disfavored in the Ninth Circuit, but even it were not

a disfavored doctrine, the Court would decline to exercise its discretion to dismiss

under prudential mootness because Plaintiffs’ case falls within an established

exception to ordinary mootness, as discussed above.

In sum, the Court declines to dismiss the challenged Plaintiffs under the

grounds of mootness, either constitutional or prudential.

Class Certification

I. Motion to Certify

As discussed above, to prevail on a motion to certify a class, the plaintiffs must

show that the proposed class meets the standards for (1) numerosity, (2)

commonality, (3) typicality, and (4) adequacy of representation. Gen. Tel. Co. of the

Nw., Inc. v. E.E.O.C., 446 U.S. 318, 330 (1980). Here, Plaintiffs seek to certify a

General Class consisting of all children in Oregon foster care, as well as three Sub-

Classes—the ADA Subclass, the SGM Subclass, and the Aging-Out Subclass.

Defendants challenge use of subclasses. Def. Resp. 45-47. Federal Rule of Civil

Procedure 23 provides that “[w]hen appropriate, a class may be divided into

subclasses that are each treated as a class under this rule.” Fed. R. Civ. P. 23(c)(5).

Defendants assert that the subclasses seek the same thing as the General Class and

so the proposed subclasses are unnecesary. Defendants urge that the subclasses be

collapsed into the General Class. The Court concludes, however, that the use of

subclasses is appropriate in the present case, subject to the limitations discussed

below.

A. Numerosity

Rule 23 requires a party seeking class certification to show that “the class is so

numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). As

the Supreme Court has explained, this “numerosity requirement requires

examination of the specific facts of each case and imposes no absolute limitations.”

Gen. Tel. Co. of the Nw., Inc., 446 U.S. at 330. “While thus eschewing any bright-line

rules, the Court did go on to state that a class with only 15 members would be too

small to meet the numerosity requirement.” A.B. v. Hawaii State Dept. of Educ., 30

F.4th 828, 835 (9th Cir. 2022) (internal quotation marks and citation omitted). “In

addition to class size, courts consider other factors to determine whether joinder is

impracticable, including the ease of identifying and contacting class members; the

geographical spread of class members; and the ability and willingness of individual

members to bring claims, as affected by their financial resources, and their fear of

retaliation in light of an ongoing relationship with the defendant.” J.N. v. Oregon

Dep’t of Educ., 338 F.R.D. 256, 264 (D. Or. 2021) (internal quotation marks and

citations omitted, alterations normalized).

With respect to the proposed General Class, there are approximately 8,000

children in foster care with DHS. Day Report, at 3. There are thousands of children

in Oregon foster care who fall within the proposed ADA Sub-Class. Puckett Report,

at 11-12. There are at least 900 youth in foster care with DHS who meet the

standards for the proposed Aging-out Subclass. Day Report, at 3. There are

approximately 400 youth who fall within the proposed SGM Subclass. Wilson Report,

at 8. Defendants do not challenge that the General Class or any of the Subclasses

meet the numerosity requirement.

The Court concludes that the proposed General Class and all three proposed

Subclasses meet the standard for numerosity.

B. Commonality

The commonality requirement of Rule 23(a)(2) requires plaintiffs seeking class

certification to show that their claims “depend upon a common contention” that “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.” Wal-Mart, 564 U.S. at 350. “Plaintiffs need not show, however, that

every question in the case, or even a preponderance of questions, is capable of class

wide resolution. So long as there is even a single common question, a would-be class

can satisfy the commonality requirement of Rule 23(a)(2).” Parsons v. Ryan, 754 F.3d

657, 675 (9th Cir. 2014) (internal quotation marks and citation omitted, alterations

normalized). “[I]n all class actions, commonality cannot be determined without a

precise understanding of the nature of the underlying claims.” Id. at 676. “To assess

whether the putative class members share a common question, the answer to which

will resolve an issue that is central to the validity of each one of the class members’

claim, [courts] must identify the elements of the class members’ case-in-chief.” B.K.,

922 F.3d at 968 (internal quotation marks and citation omitted, alterations

normalized).

“[C]lass certification is proper when class members seek to enjoin state

defendants from violating their rights through statewide policies and practices of

uniform application.” J.N., 338 F.R.D. at 266 (citing Parsons, 754 F.3d at 678; B.K.,

922 F.3d at 968, 976-78). In such cases, commonality exists because the statewide

policies and procedures are “the ‘glue’ that holds the class together,” such that their

legality can be properly litigated in a class setting. B.K., 922 F.3d at 969. “[E]ither

each of the policies and practices is unlawful as to every [class member] or it is not,”

and “[t]hat inquiry does not require [the court] to determine the effect of those policies

and practices upon any individual class member (or class members) or to undertake

any other kind of individualized determination.” Parsons, 754 F.3d at 678.

When the class claims are statutory, plaintiffs can allege a common question

based on statewide policies or practices that violate a relevant statute in two ways.

First, they can allege that every class member is subjected to the same statewide

policy or practice that is “facially invalid, such as by directly contravening” the

relevant statute. B.K., 922 F.3d at 976-77. Or, alternatively, they can allege that a

statewide policy or practice “expose[s] every [class member] to a significant risk of an

imminent future” harm. Id. at 977. Under the second theory, plaintiffs may

challenge the “violation before it has taken place,” meaning plaintiffs do not need to

show that each potential class member personally suffered a violation, “so long as the

requisite ‘significant risk’ exists, so commonality may exist based on a finding that

all class members are subjected to the same risk.” Id.

Here, Plaintiffs assert that their claims satisfy the commonality requirement

because, as in B.K. and Parsons, Plaintiffs challenge statewide policies and practices

that place all members of the General Class and each of the Sub-Classes at

substantial risk of harm and that, as a result, their claims are capable of resolution

by a single action.

In B.K., the plaintiff sought to “press two due process claims on behalf of the

General Class.” B.K., 922 F.3d at 968. “Due process requires the state to provide

children in its care reasonable safety and minimally adequate care and treatment

appropriate to the age and circumstances of the child.” Id. (internal quotation marks

and citation omitted). “To prevail on a claim for failure to meet this duty, a plaintiff

must prove that state officials acted with such deliberate indifference to the plaintiffs’

liberty interest that their actions ‘shock the conscience.’” Id. (quoting Tamas v. Dep’t

of Soc. & Health Servs., 630 F.3d 833, 844 (9th Cir. 2010)). This, in turn, requires

proof of (1) “an objectively substantial risk of harm,” and (2) “the official’s subjective

awareness of that risk.” Id. Subjective awareness may be proven by showing “(1)

that the official was aware of facts form which an inference of risk may be drawn and

that the official made that inference, (2) that the official was aware of facts from

which an inference of risk may be drawn and that any reasonable official would have

been compelled to draw that inference, or (3) that the risk of harm is obvious.” Id.

Defendants assert that Plaintiffs have not demonstrated significant proof that

that the state engages in any of the challenged policies with deliberate indifference

and that the state has, in fact, been actively working to improve the conditions for

children in care, and Defendants provide specific examples of improvement. Def.

Resp. 23.

However, as Plaintiffs point out in their Reply brief, Defendants’ argument

conflates the requirements of commonality and typicality with a “mini-trial” on the

merits. The Ninth Circuit has held that district courts err if they deny class

certification based on a premature assessment of the merits of the case, “rather than

focusing on whether the questions presented, whether meritorious or not, were

common to the members of the putative class.” Stockwell v. City and Cnty. of San

Francisco, 749 F.3d 1107, 1113-14 (9th Cir. 2014). “Whether any of these common

questions are ultimately resolved in favor of either side is immaterial at this class

certification state, where we determine whether any answer that the questions could

produce will drive resolution of the class’ claims.” Jimenez v. Allstate Ins. Co., 765

F.3d 1161, 1166 n.5 (9th Cir. 2014). Here, the focus is properly on the commonality

and typicality of the claims and not on the merits of the claims themselves.

1. The General Class

Plaintiffs identify a number of statewide policies and practices which they

allege are common to the General Class and capable of resolution in a single stroke.

These alleged policies fall broadly into three general categories: (1) that Defendants

have failed to provide an adequate array of appropriate placements; (2) that

Defendants have failed to undertake appropriate case planning; and (3) that DHS

caseworkers are chronically understaffed and assigned large caseloads.

Defendants dispute that these policies exist, but the Ninth Circuit has held

that expert reports, detailed allegations in the complaint, internal documents, and

the declarations of the named plaintiffs are more than sufficient to establish the

existence of challenged policies at the certification stage. Parsons, 754 F.3d at 683.

In addition, Plaintiffs allege the existence of unwritten policies or practices that

operate contrary to the written policies of DHS. Challenges to existence of “alleged

informal ‘policy-to-violate-the policy,’” are more “appropriately made at trial or at the

summary judgment stage,” as they go to the merits of the claim. Jimenez, 765 F.3d

at 1166 n.5.

Here, Plaintiffs have submitted expert reports detailing common DHS policy

and practice failures based on a review of the Named Plaintiffs’ case files; public

audits and reports, including audits done by the Oregon Secretary of State; internal

DHS documents; and other materials sufficient to establish the existence of the

alleged policies and practices at the certification stage.

a. Inadequate array of appropriate placements

Plaintiffs allege that there is a severe lack of foster homes which results in

children being placed in inappropriate placements, including congregate care

facilities. This has also resulted in a lack of stability for placements with children

often undergoing multiple placements. Plaintiffs allege that the lack of foster homes

is a result of DHS’s failure to prioritize the recruitment and retention of foster care

providers and that DHS’s written policies are at odds with its practice.

As of March 31, 2019, there were 7,260 children in Oregon foster care. Puckett

Report, at 5. 32% of those children were in foster care with relatives; 40% were in

non-relative foster care; 12% were in “Trial Home Visit” status, meaning that they

were living with their parents or caregivers while DHS retained custody; 9% were in

pre-adoptive homes; more than 5% were in group homes or institutional congregate

care settings; and the remainder were in supervised independent living placements

or were listed as runaways. Id.

As discussed in the background section, the lack of sufficient appropriate

placements is a recurring feature of both internal and external audits and reviews of

the Oregon foster care system. Those reports cited an urgent need for additional

placements and pointed to the problem of inappropriate placements and placement

instability.

Placement instability, or “excessive moves or placement changes while

children and youth are in foster care,” can be “jarring and disruptive to children’s

emotional health and may leave them anxious, fearful and unable to form and benefit

from potential supportive relationships.” Puckett Report, at 12. Dr. Puckett found

that, of the 8,719 children who spent at least a day in Oregon foster care between

October 1, 2018 and March 31, 2019, 36% experienced three or more placements and

61 of those children experienced 20 or more placements. Id. One child had been in

40 different placements. Id. Dr. Puckett attributed the issue to “the state’s well-

documented difficulty recruiting and retaining qualified home providers in

geographic areas throughout the state,” at the levels necessary to meet the numbers

of children taken into care. Id. at 13. Dr. Puckett also noted that, in his experience,

a lack of appropriate placements can result in children being placed in

“inappropriately restrictive settings,” such as group homes or institutional care

settings. Id. The use of such settings on an emergency basis is “often unsustainable”

and can “snowball” into successive short-term placements, with the problems

attendant to such instability. Id.

Defendants assert that Plaintiffs have failed to show a class-wide deficiency in

adequate placements. Def. Resp. 38. Defendant contend that the number of

placements have been steadily increasing and, to the extent that a shortage exists, it

is in the area of homes for children with complex or acute needs, like the Named

Plaintiffs. Defendants argue that Plaintiffs do not provide evidence that there is a

lack of appropriate placements that affect all putative class members and that

Plaintiffs have failed to show evidence of a substantial risk of harm associated with

the alleged lack of placements. Def. Resp. 39-40.

Those arguments are belied by Oregon Secretary of State Audits, which

identify a lack of appropriate placements as a recurring problem for the Oregon foster

care system and discuss the negative effects of placement instability and short-term

emergency placement practices. The need for more foster care homes in Oregon and

the need to ensure that sufficient resources and support exist for those homes are

discussed at length in the 2018 Audit, along with recommendations for remedying

the problem. In its response to the 2018 Audit, DHS agreed with the

recommendations. Lowry Decl. Ex. 1, at 72-79.

The Court concludes that Plaintiffs have made a sufficient showing of a class-

wide deficiency in the availability of appropriate placement.

b. Lack of appropriate case planning

Plaintiffs allege that children in care are not given appropriate case plans and

that DHS’s practices are at odds with their written policies. Plaintiffs contend that

a substantial number of children in DHS care do not have their needs assessed and

that up to 10% of children in care have no established case plan goal listed in their

AFCARS data file. Puckett Report, at 10.

Defendants respond that case planning is a highly individualized process and

so the appropriateness of case plans is not an issue that is suitable to class-wide

resolution and should be reserved to the state’s juvenile court system. Def. Resp. 29-

32. And even if there is a delay in preparing a case plan, Plaintiffs have not shown

that the delay exposes the children to a substantial risk of harm. Def. Resp. 32-33.

While the propriety of a particular case plan is certainly an individualized

matter, the nature of Plaintiffs’ claim is that case plans are not being prepared in a

timely fashion. DHS’s 2019 Annual Progress and Service Report indicated serious

deficiencies in the timely preparation of case plans for most cases. Lowry Decl. Ex.

17, at 80. Dr. Puckett likewise found multiple instances of untimely case plans or

case planes with goals “inappropriate to the facts of the case,” and that these failures

have implications for identifying proper placements for children in care or for the

timely provision of services. Puckett Report, at 10-11.

On this record, the Court concludes that Plaintiffs have demonstrated

commonality for a lack of adequate case planning in the proposed General Class.

c. High caseloads and chronic understaffing

Caseworkers are assigned primary responsibility for the children in DHS care,

but Plaintiffs allege that caseworkers are chronically overworked and understaffed

as a result of Defendants’ hiring, training, and retention policies and practices.

Puckett Report, at 4-5. Plaintiffs assert that caseloads exceed recommended levels

and that caseworkers struggle to have meaningful meetings with the children in care.

This causes high turnover among caseworkers and new caseworkers are required to

take on full caseloads though they have not completed their training period. Because

of the central role caseworkers occupy in the child welfare process, Plaintiffs argue

that the problems of understaffing, overwork, and high turnover rates have

significant consequences for children in care, including child safety.

Defendants respond that Plaintiffs have failed to show a “current” policy or

practice of chronic understaffing and high caseloads. Def. Resp. 34. DHS

substantially expanded its hiring in response to the 2018 Audit. However, high

caseloads and staff turnover, with the attendant problems of overwork and

inadequate training, are a recurring feature of the audits and reviews of DHS.

Understaffing and high caseloads remained a matter of concern in the 2020 Audit,

which noted that the high rate of caseworker turnover substantially eroded the gains

made in hiring new caseworkers.

On this record, the Court concludes that Plaintiffs have made a sufficient

showing of commonality with respect to the issues of high caseloads and chronic

understaffing as they relate to the proposed General Class.

2. The ADA Subclass

With respect to the ADA Subclass, Plaintiffs allege that the following statewide

policies and practices are capable of resolution on a classwide basis:

(1) whether Defendants have deprived the ADA Subclass of necessary and

appropriate services and treatment to make them able to access an array of

community-based placements and services to ensure access to the least restrictive

environment.

(2) whether Defendants have a practice of placing youth with disabilities in

institutional settings and denying them access to community-based treatment; and

(3) whether Defendants have a practice of failing to build and maintain an

adequate infrastructure of mental health providers and other therapeutic service

providers capable of meeting the needs of the ADA Subclass.

Plaintiffs maintain that, despite DHS’s written policies complying with state

and federal law, DHS’s practices fall short. As of March 31, 2019, DHS records show

that approximately 6% of children in Oregon foster care have a diagnosed disability,

but national studies have found that over 30% of children in child welfare programs

have one or more disabilities.” Puckett Report, at 11-12. Plaintiffs’ experts attribute

the discrepancy to “Oregon’s apparent failure to consistently complete required

clinical assessments on a timely basis,” which makes it “likely that DHS is failing to

identify and provide appropriate services.” Id. at 12. As the audits repeatedly

recognized, placement decisions are often made based on availability, rather than on

the needs of the child. Children with disabilities are overrepresented in congregate

care settings, experience more placements on average compared to the general

population of children in care, and spend more time in care. Puckett Report, at 33,

35-36, 38-39.

Defendants respond that Plaintiffs have failed to provide evidence that the

state has any policy or practice that discriminates against children because of their

disabilities. Def. Resp. 44. Defendants contend that Plaintiffs’ ADA claim essentially

collapses into the claims for the General Class in that they argue for a lack of

adequate placements, not that the existing placements are not distributed evenly.

This is not, however, a challenge to Plaintiffs’ showing of the existence of a common

policy or practice but is instead a premature challenge to the merits of Plaintiffs’

claims. In the present case, the Court concludes that the proposed ADA Subclass is

sufficiently distinct and does not collapse into the proposed General Class.

“[I]n almost every case involving a challenge under Title II of the ADA and/or

Section 504 of the Rehabilitation Act to discriminatory governmental policies and

practices, courts have certified a class.” Lane v. Kitzhaber, 283 F.R.D. 587, 595 (D.

Or. 2012). Here, Plaintiffs have made a sufficient showing of statewide policies and

practices that expose the members of the proposed ADA Subclass to a substantial risk

of harm. The Court concludes that Plaintiffs have demonstrated commonality with

respect to the proposed ADA Subclass.

3. The SGM Subclass

For the SGM Subclass, Plaintiffs allege that Defendants have denied SGM

youth the appropriate services and placements to prevent them from experiencing a

higher-than-average number of foster care placements; a higher likelihood of living

in a congregate care setting; and a higher incidence of violence and harassment from

foster parents and peers.

Plaintiffs have presented evidence that SGM youth are overrepresented in

child welfare systems, at nearly double the rate of SGM in the general population.

Wilson Report, at 7. While in care, SGM youth experience higher rates of

homelessness, more placements, higher rates of psychological distress, and have a

greater likelihood of victimization. Id. at 7-8. SGM youth are, as a group, particularly

“vulnerable to bias and rejection from peers, parents, and other important adults,”

and “consistently report higher rates of bullying, feeling unsafe in school, and

suicidality.” Id. at 11-12. SGM youth in foster care “have been shown to experience

poor treatment within child welfare settings at higher rates than non-LGBTQ youth,”

and, in addition to direct reports of poor treatment, have been “found to have higher

amounts of psychological distress, more placements, and experienced homelessness

and victimization at the hands of peers and staff.” Id. at 12.

Plaintiffs allege that, despite DHS’s statements of respect and support for the

needs of SGM children in foster care, Defendants do not know how many SGM

children are in care. DHS data is based on an assumption that only 2% of children

in care are SGM, Lowry Decl. Ex. 12, at 7, but Plaintiffs argue that the accurate figure

is approximately 19.1%. Wilson Report, at 8. This translates into 592 SGM youth

out of a total of 3,102 youth ages 13 or older who “spent at least one day in some kind

of foster care,” based on a 2018 DHS report. Id. Plaintiffs allege that DHS has a

policy of not asking a child in care whether they identify as a sexual or gender

minority and the decision not to identify SGM children has consequences for finding

appropriate placements among the already-small number of SGM-friendly foster

homes.

The 2018 Audit also noted limited availability of SGM-friendly foster homes,

with only “a handful of scattered efforts” to recruit additional SGM-friendly foster

placement options. 2018 Audit, at 33. Children interviewed for the 2018 Audit

reported “not feeling respected or listened to and attributed this to an organizational

culture at DHS which is unwelcoming and unequipped to work with LGBTQ+ youth.”

Id.

Defendants respond that SGM individuals experience increased levels of

bullying, violence, and discrimination whether they are in the care of DHS or not and

that Plaintiffs “cannot litigate society’s bigotry as a whole in a class action against

the State.” Def. Resp. 24-25. Defendants maintain that DHS has robust policies in

place to ensure fair treatment of SGM children in foster care, with an entire chapter

of the Child Welfare Procedure Manual devoted to the subject and that DHS provides

appropriate care and services for any child who identifies as SGM. Def. Resp. 25-26.

The Court is not called upon, however, to litigate societal bigotries, but to

determine whether Plaintiffs have made a sufficient showing of a subclass-wide policy

or practice that exposes members of the class to a significant risk of harm. The Court

concludes that Plaintiffs have met that burden on this record.

4. The Aging-out Subclass

For the Aging-out Subclass, Plaintiffs allege two policies giving rise to claims

amenable to classwide resolution: (1) the denial of resources necessary to learn to live

independently and provide them with the necessary training, skills, and assistance

to secure housing upon discharge from care; and (2) the lack of support and

caseworker resources to ensure that children receive transition planning for children

aging out of care.

“As of 2019, nearly a quarter of transition-aged youth are placed in non-family

settings such as institutions and group homes,” and Plaintiffs contend that they have

presented evidence that such placements are correlated with “worse life outcomes.”

Day Report, at 11-12. Many such placements are considered as emergency or

temporary placements and children in those temporary placements “can be moved

several times per month or year,” and “[e]ach move adds another layer of trauma and

stress for a young person and increases the likelihood that they will experience

educational, therapeutic, and/or social disruptions that ultimately impede their

ability to successfully transition to adulthood.” Id. at 13.

The national rate of permanency is twice the rate of permanency in Oregon.

Day Report, at 16. “[O]nly 21% of transition-aged youth achieved permanency in

Oregon in 2018,” and “only 28% of children aged 15-17 achieved permanency within

two years of entering state care,” and that percentage declines sharply the longer a

child spends in foster care. Id. at 15-16. Plaintiffs’ experts attribute this deficiency

to “outdated policies that do not include youth in the transition planning process,

understaffing, limited training and supervision support for caseworkers, and a lack

of emphasis on connecting youth with supportive adults before they leave care.” Id.

at 21.

In 2013, 76.9% of transition-aged children had a completed transition plan

within one year, but by 2017, that rate had dropped to 38%. Day Report, at 17.

Despite DHS’s goal of providing mentoring services to 25% of transition-aged youth,

only 8% of transition-aged youth received such services in 2017. Id. at 18.

Defendants respond that Plaintiffs cannot show a current policy of failing to

provide transitional services to members of the proposed Aging-Out Subclass. Def.

Resp. 35-37. Defendants emphasize the substantial services available to aging-out

children and point out that Plaintiffs’ expert Dr. Day is not familiar with Oregon’s

services for aging-out youth. Defendants assert that a lack of documentation

concerning the provision of aging-out services in AFCARS does not mean that those

services were not provided. Further, Defendants contend that Plaintiffs cannot show

that there is substantial harm associated with the failure because Oregon

outperforms the national averages when it comes to outcomes for aging-out youth.

This is, however, an argument addressed to the merits of the claim, rather than one

aimed at the existence of a common policy or practice.

Of note, the Court has dismissed the due process claims brought by the

proposed Aging-Out Subclass with respect to connection to an adult resource,

independent living services, and assistance in finding permanent housing. Those

dismissed claims are, plainly, not part of the Court’s analysis. However, with respect

to the remaining claims, the Court concludes that Plaintiffs have made a sufficient

showing of statewide policies and practices which expose the members of the proposed

Aging-Out Subclass to a substantial risk of harm and the Court therefore finds that

Plaintiffs have made the necessary showing of commonality.

C. Typicality

“To establish typicality, as required by Rule 23(a)(3), plaintiffs must show that

‘the claims or defenses of the representative parties are typical of the claims or

defenses of the class.’” A.B., 30 F.4th at 839 (quoting Fed. R. Civ. P. 23(a)(3)). “The

test of typicality is whether other members have the same or similar injury, whether

the action is based on conduct which is not unique to the named plaintiffs, and

whether other class members have been injured by the same course of conduct.”

Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation

marks and citation omitted). The representative plaintiffs’ claims should be

“reasonably coextensive” with those of the absent class members but “they need not

be substantially identical.” B.K., 922 F.3d at 969-70. “The purpose of the typicality

requirement is to assure that the interest of the named representative aligns with

the interests of the class.” Hanon, 976 F.2d at 508. This is a “permissive” standard.

Castillo v. Bank of Am., N.A., 980 F.3d 723, 729 (9th Cir. 2020). “Because the

considerations underlying the two requirements [commonality and typicality] overlap

considerably, the Supreme Court has noted that the commonality and typicality

requirements of Rule 23(a) tend to merge.” A.B., 30 F.4th at 839 (internal quotation

marks and citation omitted, alterations normalized).

Plaintiffs maintain that, in the context of Plaintiffs’ legal theory, the injury

suffered by each of the Named Plaintiffs is the same—the exposure to a substantial

risk of harm by DHS policies and practices. None of the injuries suffered by the

Named Plaintiffs are unique in that respect.

Defendants assert that the Named Plaintiffs are not typical because they are

not statistically representative of the children in foster care and that they represent

the most challenging type of cases that come before child welfare agencies. Def. Resp.

15-16. This is not, however, the nature of the typicality inquiry in the context of Rule

23. “Typicality” refers, as previously noted, to whether the claims and defenses of the

representative parties are typical, or “reasonably co-extensive” with those of the

absent class members. Castillo, 980 F.3d at 729. It does not require that the claims

or defenses be “substantially identical,” nor does it require that the Named Plaintiffs

be factually identical to the absent members of the class or that they be, as

Defendants suggest, statistically representative of the proposed class. For example,

Defendants’ arguments that the Named Plaintiffs are too few in number, or that they

are not geographically representative of the children in DHS care are irrelevant for

purposes of determining whether their claims and defenses are “typical” of the class

when, as here, the Named Plaintiffs are seeking to challenge statewide policies and

procedures.

Similarly, Defendants’ arguments concerning whether the individual Named

Plaintiffs have suffered harm from the challenged policies or whether the majority of

children in DHS care suffer from those policies is not determinative of the typicality

inquiry. The Ninth Circuit has observed that there is a difference between a claim

that a plaintiff has “already suffered harm and a claim that he has been exposed to a

substantial risk of serious harm.” Parsons, 754 F.3d at 677. In this case, Plaintiffs

have based their claims on the substantial risk of harm stemming from the

challenged policies and practices and there is no requirement that the Named

Plaintiffs demonstrate that they have each individually be harmed by those policies.

With respect to the challenged policies, Defendants assert that each of the

Named Plaintiffs has a case plan and so they cannot be typical of an alleged failure

to provide a case plan; that they cannot be typical of a failure due to high caseloads

or understaffing because the Named Plaintiffs received good care from their

caseworkers; and that they cannot be typical of inadequate placement options due to

the challenging nature of their cases.

In the case of Plaintiff Bernard C., Defendants assert that he cannot be typical

of the SGM subclass because he was not harmed by a failure of DHS to identify him

as SGM and to provide specialized services accordingly. Likewise, Defendants argue

that Plaintiffs Naomi B., Norman N., Bernard C., and Ruth cannot be typical of the

Aging-Out Subclass because they have received transition services and referrals for

independent living skills.

And in the case of the proposed ADA Subclass, Defendants contend that each

of the Named Plaintiffs has an adequate case plan and that none assert a lack of

assessment or diagnosis for disability. Further, that Plaintiffs’ experts have not

identified any disability-related services that the Named Plaintiffs needed but did

not receive.

Defendants focus on the specific facts of the Named Plaintiffs’ cases, rather

than on whether their claims are typical of the absent class members. As the Ninth

Circuit has observed, there is a difference “between a claim that an inmate has

already suffered harm and a claim that he has been exposed to a substantial risk of

harm,” and the “correct issue for consideration” is whether the defendants “were

subjectively aware of a serious risk of substantial harm,” rather than whether the

plaintiff has already suffered the harm in question. Parsons, 754 F.3d at 677 (internal

quotation marks and citation omitted, emphasis in original). The “remedy for unsafe

conditions need not await a tragic event.” Id. (internal quotation marks and citation

omitted).

Here, Plaintiffs do not seek to certify a class that has already suffered specific

categories of harm, such as “all youth who were denied a timely case plan” or “all

youth who were harmed by chronic understaffing,” but instead seek to certify a

General Class of all children in Oregon foster care based on their common exposure

to the substantial risk of harm as a result of the challenged policies and practices.

Plaintiffs have demonstrated that the challenged policies and practices exist and that

they expose children in foster care to harm. As such, the Named Plaintiffs’ claims

are typical of those of the proposed General Class. The claims of the proposed

Subclasses—ADA, SGM, and Aging-out—are similarly based on statewide policies

and practices and Plaintiffs have made a sufficient showing that the challenged

policies exist and that the policies exposed both the Named Plaintiffs and the absent

class members to a substantial risk of harm.

Accordingly, the Court concludes that Plaintiffs have made a sufficient

showing of typicality as to the proposed General Class and all three proposed

Subclasses.

D. Adequacy of Representation

Plaintiffs in putative class actions must also show that “the representative

parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). Adequacy turns on two questions: (1) whether “the named plaintiffs and

their counsel have any conflicts of interest with other class members,” and (2)

whether the named plaintiffs and their counsel [will] prosecute the action vigorously

on behalf of the class[.]” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.

1998), overruled on other grounds by Wal-Mart, 564 U.S. at 338. “The adequacy

requirement is based on principles of constitutional due process; accordingly, a court

cannot bind absent class members if class representation is inadequate.” J.N., 338

F.R.D. at 273 (citing Hansberry v. Lee, 311 U.S. 32, 42-43 (1940)). Where there are

multiple proposed class representatives, a court need only find that one is an

adequate class representative. See Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 961

(9th Cir. 2009).

Here, Plaintiffs do not seek monetary relief and are focused instead on

declaratory and injunctive relief. The Named Plaintiffs do not have any

demonstrated conflicts of interest with the other class members and Plaintiffs have

demonstrated that they will prosecute this action vigorously on behalf of the class.

The Court therefore concludes that Plaintiffs are adequate class representatives.2

E. Rule 23(b)(2)

Certification under Rule 23(b)(2) requires that “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). This Rule is satisfied where plaintiffs have

2 Defendants contend that several of the Named Plaintiffs’ next friends are inadequate. Def. Resp.

49. This is an issue separate and distinct from the Named Plaintiffs’ adequacy for purposes of Rule

23(a). The Court will invite the parties to submit briefing on the adequacy of the next friends of the

Named Plaintiffs and will resolve that issue separately from the question of class certification

resolved by this Order.

described the general contours of an injunction that (1) “would provide relief to the

whole class,” (2) “that is more specific than a bare injunction to follow the law,” and

(3) that can be given greater substance and specificity at an appropriate stage in the

litigation through fact-finding, negotiations, and expert testimony.” B.K., 922 F.3d

at 972.

The key to the (b)(2) class is the indivisible nature of the injunctive or

declaratory remedy warranted—the notion that the conduct is such that

it can be enjoined or declared unlawful only as to all of the class

members or as to none of them . . . In other words, Rule 23(b)(2) applies

only when a single injunction or declaratory judgment would provide

relief to each member of the class.

Wal-Mart, 564 U.S. at 360 (emphasis added, internal quotation marks and citation

omitted).

The Rule 23(b)(2) “inquiry does not require an examination of the viability or

bases of the class members’ claims for relief . . . and does not require a finding that

all members of the class have suffered identical injuries.” Parsons, 754 F.3d at 688.

“The fact that some class members may have suffered no injury or different injuries

from the challenged practice does not prevent the class from meeting the

requirements of Rule 23(b)(2).” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir.

2010). Rule 23(b)(2)’s requirements “are unquestionably satisfied when members of

a putative class seek uniform injunctive or declaratory relief from policies or practices

that are generally applicable to the class as a whole.” Parsons, 754 F.3d at 688.

The Ninth Circuit has found Rule 23(b)(2) met in civil rights actions brought

by foster children challenging statewide child welfare policies and practices. B.K.,

922 F.3d at 971.

Plaintiffs assert that the General Class and each Subclass requests an

“indivisible” injunction, rather than relief that would entitle each individual class

member to receive their own injunction, which satisfies the requirements of Rule

23(b)(2), as set forth in B.K., 922 F.3d at 971.

Defendants dispute the suitability of the claims to class-wide resolution,

arguing that Plaintiffs are in effect seeking thousands of individualized

determinations. The Court concludes, however, that Plaintiffs are not asking for

individualized determinations as part of this litigation but are instead challenging

Defendants’ systemic failure to perform the determinations as part of the child

welfare process and seek to remedy that failure through class-wide injunctive relief.

The Court concludes that Plaintiffs have met the requirements of Rule 23(b)(2).

II. Appointment of Class Counsel

Rule 23(g) provides that “a court that certifies a class must appoint class

counsel.” Fed. R. Civ. P. 23(g)(1). In appointing counsel, the court must consider: (1)

“the work counsel has done in identifying or investigating potential claims in the

action;” (2) “the counsel’s experience in handling class actions, other complex

litigation, and the types of claims asserted in the action;” (3) counsel’s knowledge of

the applicable law;” (4) “the resources that counsel will commit to representing the

class.” Fed. R. Civ. P. 23(g)(1)(A). Courts may also consider “any other matter

pertinent to counsel’s ability to fairly and adequately represent the interests of the

class.” Fed. R. Civ. P. 23(g)(1)(B); see also Fed. R. Civ. P. 23(g)(4) (“Class counsel

must fairly and adequately represent the interests of the class.”). “Adequate

representation is usually presumed in the absence of contrary evidence.”

Californians for Disability Rights, Inc. v. California Dep’t of Transp., 249 F.R.D. 334,

349 (N.D. Cal. 2008).

The proposed class counsel in this case consists of attorneys from A Better

Childhood, Davis Wright Tremaine, and Disability Rights Oregon. Stensen Decl.

ECF No. 66. Counsel have more than demonstrated their ability, experience, and

knowledge in matters related to the complex areas of litigation implicated by this

case, including class actions, foster care litigation, disability rights, and

constitutional rights litigation. The Court concludes that the proposed class counsel

will fairly and adequately represent the interests of the proposed class and subclasses

and so will grant the proposed request to appoint class counsel.

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Exclude Experts, ECF

No. 114, is DENIED. Plaintiff’s Motion to Exclude Experts, ECF No. 203, is

GRANTED in part and DENIED in part. Defendants’ Motions to Dismiss as Moot,

ECF Nos. 109, 230, 232, 252, 253, are DENIED.

Plaintiffs’ Motion to Certify, ECF No. 64, is GRANTED. This action shall

proceed as a class action with one General Class and three Subclass: the ADA

Subclass, the SGM Subclass, and the Aging-out Subclass.

Membership in the General Class is as follows: All children for whom the

Oregon Department of Human Services (“DHS”) has or will have legal responsibility

and who are or will be in the legal or physical custody of DHS. The following Named

Plaintiffs are appointed as Class Representatives for the General Class: Wyatt B.,

Noah F., Kylie R., Alec R., Unique L., Simon S., Ruth T., Bernard C., Naomi B., and

Norman N.

Membership in the ADA Subclass is as follows: All members in the General

Class who have or will have physical, intellectual, cognitive, or mental health

disabilities. The following Named Plaintiffs are appointed as Class Representatives

for the ADA Subclass: Bernard C., Naomi B., Unique L., Ruth T., Norman N., and

Simon S.

Membership in the SGM Subclass is as follows: All members of the General

Class who identify as sexual or gender minorities, including lesbian, gay, bisexual,

queer, transgender, intersex, gender non-conforming, and non-binary children.

Named Plaintiff Bernard C. is appointed as Class Representative for the SGM

Subclass.

Membership in the Aging-Out Subclass is as follows: All members of the

General Class who are or will be 14 years old or older, who are eligible for transition

services and lack an appropriate reunification or permanency plan. The following

Named Plaintiffs are appointed as Class Representatives for the Aging-Out Subclass:

Bernard C., Naomi B., Norman N.

The Court appoints attorneys from A Better Childhood, attorneys from

Disability Rights Oregon, and the law firm Davis Wright Tremaine LLP as co-counsel

for the certified General Class and each of the three certified Subclasses.

It is so ORDERED and DATED this 1 7th day of August 2022.

/s/Ann Aiken

ANN AIKEN

United States District Judge