Braam ex rel. Braam v. State, 72598-5.

Decision Date18 December 2003
Docket NumberNo. 72598-5.,72598-5.
Citation81 P.3d 851,150 Wash.2d 689
CourtWashington Supreme Court
PartiesJessica BRAAM, a minor child, by and through her guardians, Dale and Vickie BRAAM; Jenneiva Bursch, a minor child by and through her guardians, Greg & Sherry Bursch; Cassidee Bursch, a minor child, by and through her guardians, Greg & Sherry Bursch; Desi Morgan, a minor child, by and through her guardians, Lori Morgan and Lonnie Morgan; Patrick Morris, a minor child, by and through his guardians, Kathy and David Morris; Tim Olson, a minor child, by and through his guardians, David and Diane Olson; Shaun Sanchez, a minor child, by and through his court appointed Gal, Tom Faubion; Amie Loreen Watkins, a married person; Robyn Brandon, a minor child, by and through her guardian, E. Sparrowhawk Brandon; Beth Hardin, a single person; Eryk Hardin, a minor child, by and through his guardians, David and Mary Hardin; Ivory Hardin, a minor child, by and through her guardians, David and Mary Hardin; Eboney Hardin, a minor child, by and through her guardians, David and Mary Hardin, and the Class they represent, Respondents, v. STATE of Washington and the Department of Social and Health Services, and Lyle Quasim, individually and as Secretary of the Department of Social and Health Services, Appellants.

Corr Cronin LLP, Kelly Corr, Kelsey L. Joyce, Seattle, WA, Christine Gregoire, Attorney General, Jefferey Freimund, William Williams, Asst., Olympia, WA, for Appellants.

Brett & Daugert, Timothy Farris, Bellingham, WA, Columbia Legal Services, Casey Trupin, John Midgley, Seattle, WA, National Center for Youth Law, William Grimm, Oakland, CA, for Respondents.

Donald Scaramastra, Seattle, WA, for Amicus Curiae on behalf of The Children's Alliance.

Kimberly Ambrose, Seattle, WA, for Amicus Curiae on behalf of Washington Defender Association.


This class action was brought against the Department of Social and Health Services (DSHS or State) in an effort to improve the lives of foster children in the State's care. Among other things, the respondents seek to force DSHS through a variety of legal claims to drastically reduce the number of times foster children are moved while in the State's care. Most of the claims were dismissed before or during trial, and the case went to the jury on whether the class's claimed substantive due process right to "the exercise of professional judgment, standards or practices" had been violated. The jury made two findings: (1) that the class's constitutional rights, as defined in the jury instructions, had been violated, and (2) that the violation had harmed the class. Based on that verdict and additional findings made by the trial judge, a broad injunction substantially governing the State's foster care system was entered.

Today we must decide whether the court below mistook the appropriate substantive due process standard of care for the right itself. We are also asked to decide whether the trial court properly dismissed certain state and federal statutory claims, whether the injunction was overly broad, whether the class should be judicially estopped from changing its articulation of the alleged substantive due process right, and to resolve several procedural and evidentiary issues.

We hold that the jury was incorrectly instructed on the foster children's substantive due process rights. We reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.


Washington's foster care system is charged with the sad duty of caring for children whose families are unable to do so. Ch. 13.34 RCW; ch. 74.13 RCW; see generally Report of Proceedings (RP) at 1580-82, 2054-55. Many of the children entering into foster care have been severely abused. Many have been physically or emotionally neglected. Some children in foster care are moved frequently, which may create or exacerbate existing psychological conditions, notably reactive attachment disorder.1 The Washington State Legislature has specifically recognized that "[p]lacement disruptions can be harmful to children by denying them consistent and nurturing support." RCW 74.13.310.

Children's advocates across the nation began bringing litigation decades ago in an attempt to force states to improve their foster care systems.2 In August 1998, respondents joined the fray, filing this lawsuit in Whatcom County Superior Court, originally seeking money damages in tort for injuries to foster children. Two years later, the plaintiffs added a claim for injunctive relief and sought certification as a class action. The class eventually certified included "[a]ll children who are now (or who in the future will be) in the custody of the Department of Health and Social Services foster care system and who while in DSHS custody are placed by the Defendants in three or more placements." Clerk's Papers (CP) at 275. The tort claims of the named plaintiffs were settled before trial. Ultimately, only injunctive relief was sought.

The trial court dismissed all claims based on procedural due process, 42 U.S.C. § 675(5)(C) and the Washington State Constitution. It also dismissed most of the claims based on state and federal child welfare and disability statutes. However, the trial judge denied the State's motion for summary judgment on the class's substantive due process claim. The trial court also made several evidentiary rulings before trial, limiting the State's use of evidence of fiscal constraints, and denying the State's motion to exclude three named plaintiffs who had "aged out" of the class.

The parties agreed to try this case to a jury and to be bound by its verdict.3 During trial, the court denied a motion to decertify the class and dismissed most of the plaintiffs' remaining statutory claims. Over the State's objection, the court allowed the plaintiffs to refer to those and other statutes and to state regulations during the trial as evidence of the State's duties.

After the plaintiffs rested, the court dismissed the remaining statutory claims, the three named plaintiffs about whom no testimony was presented, and all claims against former DSHS Secretary Lyle Quasim. The court denied a motion to restrict the class to children with at least five placements.

Meanwhile, characterization of the substantive due process right at issue had changed. The plaintiffs' first clear articulation of the right came in opposition to the State's summary judgment motion on the substantive due process claims:

The first [substantive due process] claim alleges that child abuse and neglect victims placed in the state's custody are entitled to be free from harm and that such harm encompasses both physical injury and mental and/or psychological harm. The injury of which plaintiff's [sic] complain is caused primarily by defendants' pattern and practice of indiscriminately moving children from one placement to another like so much chattel. The second claim asserts that foster children must be provided with health care while in state custody and that their entitlement to such treatment includes a right to care for their serious mental health problems.

CP at 2256-57 (Pls.'s Mem. in Opp'n to Mot. to Dismiss Substantive Due Process Claims) (emphasis added) (footnotes omitted). At that point, it appears that the State and the trial court both understood the class's theory was that substantive due process prohibited frequent placement changes. See, e.g., RP at 3073-74.

In court before the jury on October 29, 2001, the plaintiffs argued "the right of children to a safe, stable and permanent home and the constitutional right to be free from harm." RP at 775. The trial court and the State both believed that was a correct description of the class's substantive due process theory. See, e.g., RP at 3072-740.

When all the evidence was in and both sides had rested, the plaintiffs informed the court they had concluded it would be error to instruct on the constitutional right to "safe, stable, and permanent homes." RP at 3072. Instead, the plaintiffs suggested instructing on the right to "adequate treatment ... substantially comporting to professional standards." Id. (citing Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452,73 L.Ed.2d 28 (1982)). Both the State and the court expressed surprise. The court said, "I have had in my mind all along that [the right to safe, stable, and permanent homes] is what we have been talking about." RP at 3073. The State excepted to the instruction, arguing "Youngberg ... is the burden ... not... the right." RP at 3079. The trial court substantially adopted the plaintiffs' position and issued its final jury instructions, defining the liberty interest as follows:

The plaintiff class claims that the defendants violated, or will violate, their constitutional rights to substantive due process to be treated in a manner which does not substantially depart from professional judgment, standards or practice.

CP at 751 (Jury Instruction 7). The jury was ultimately asked to render a verdict on two questions: whether the constitutional rights of the plaintiff class were violated, and, if so, whether the violation was the proximate cause of the harm claimed by the class. After a day of deliberation, the jury returned a verdict for the plaintiffs. Id. Later, the trial court made five additional findings of fact:

1. Children are harmed by being subjected to unnecessary multiple placements.
2. Foster parents are inadequately trained, informed and supported to provide proper care for children in the class.
3. Children are denied necessary mental health care (assessments and treatment).
4. Children are placed in unsafe placements (DSHS offices, homes of sexual offenders, violent offenders and held in detention/jails).
5. Children are separated from their siblings.

CP at 143.

Based on the jury's verdict and the additional findings, the trial court entered a broad injunction, mandating the...

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