[00:00:01] Speaker 03:
Good morning, and may it please the court.

[00:00:03] Speaker 03:
I'm Tom Stenson here on behalf of the class of Appellant Foster Children.

[00:00:07] Speaker 03:
30 years after Lipscomb v. Simmons, the state of Oregon is again arguing to the circuit that they do not have a constitutional duty to care for certain groups of foster children.

[00:00:17] Speaker 03:
In Lipscomb, this en banc Ninth Circuit, citing Descheny, held that Oregon owes a constitutional duty of care once the state assumes wardship of a child.

[00:00:28] Speaker 03:
Under Oregon law, a ward is a person within the jurisdiction of the juvenile court.

[00:00:33] Speaker 03:
And that jurisdiction continues even though the child is receiving adequate care from the person having physical custody of the child.

[00:00:40] Speaker 03:
Thus, a child remains a ward of the state even when a court grants a parent temporary physical custody of the child for a limited and specified period.

[00:00:48] Speaker 03:
And like in Descheny, Oregon law provides that wardship terminates and therefore that the state's constitutional obligation terminates

[00:00:56] Speaker 03:
only when the juvenile court dismisses their case and the child is placed in the permanent physical and legal custody of a natural or adoptive parent.

[00:01:04] Speaker 03:
Under Oregon law, when the state chooses to place a child in a parent's home, the state retains control over every element of that placement.

[00:01:12] Speaker 03:
The state chooses which parent the child stays with to the exclusion of the other parent, to the exclusion of grandparents and other natural supports.

[00:01:21] Speaker 03:
The state chooses where the child stays during that time, what medical care, what mental health care,

[00:01:26] Speaker 03:
what other services the child gets during that time.

[00:01:29] Speaker 03:
The state also has the discretion to end the parental placement at any time.

[00:01:33] Speaker 01:
I have a question about your settlement agreement.

[00:01:36] Speaker 01:
Your second category of children that this dispute focuses on is children who have been removed are in ODHS's legal custody but are not in ODHS's physical custody because they are placed in home with a parent or legal guardian.

[00:01:52] Speaker 01:
Yes.

[00:01:52] Speaker 01:
All the briefing seems to be focused on the placement with the parent.

[00:01:56] Speaker 01:
Yes.

[00:01:57] Speaker 01:
Are you not arguing the legal guardian piece of that second category of children or not?

[00:02:05] Speaker 03:
I'm not.

[00:02:06] Speaker 03:
So all the children that we are talking about have the state as their legal guardian.

[00:02:11] Speaker 03:
So in.

[00:02:14] Speaker 03:
Oh the parent or legal guardian element.

[00:02:17] Speaker 01:
I'm just saying if you're on a trial home visit with a legal guardian instead of a parent is that group of children

[00:02:26] Speaker 01:
part of this appeal, because all the briefing seems to be focused on trial home visit with a parent.

[00:02:33] Speaker 03:
I see what you're saying.

[00:02:37] Speaker 03:
I think to the extent that the state retains legal custody of the child, that would be an instance.

[00:02:47] Speaker 01:
That would moot that category?

[00:02:49] Speaker 03:
Yes.

[00:02:49] Speaker 03:
Okay, thank you.

[00:02:55] Speaker 03:
So appellant foster children showed that those parental placements failed about half the time.

[00:03:02] Speaker 03:
The state of Oregon's extensive control over all decisions surrounding these placements, with which parent, where, how, with what services, and for how long, does not resemble in any way the state of Wisconsin's decision in Deshaney to simply withdraw from any supervisory role and leave the family unit to its own devices.

[00:03:21] Speaker 03:
In the Ninth Circuit, we have more than 30 years of repeated findings that children who are in foster care have a special relationship with the state, such that the state has substantive due process obligations to them.

[00:03:36] Speaker 03:
There is not a single case in this entire circuit in those 30 years that has found that a child who is in the legal custody of the state does not have a special relationship with the state in some sense.

[00:03:51] Speaker 00:
Let me ask you, counsel.

[00:03:52] Speaker 00:
So legal custody is defined.

[00:03:56] Speaker 00:
And as I understand it, tell me if I'm wrong, that the ward is defined.

[00:04:03] Speaker 00:
And it's the same as the definition of a ward for, say, for example, if it's a prisoner.

[00:04:11] Speaker 00:
So they're exactly the same, which is not what you had in the Descheny case.

[00:04:18] Speaker 03:
Correct.

[00:04:19] Speaker 03:
So I think that is a crucial distinction between the DeShaney case and the present matter.

[00:04:24] Speaker 03:
In the DeShaney case, poor Joshua was neither in the physical custody nor the legal custody of the state during the time when he was injured.

[00:04:31] Speaker 00:
And that's important because the legal custody here is specifically defined.

[00:04:38] Speaker 00:
And it is defined such that the children, even though they're in temporary custody of their parents, are wards, and wards

[00:04:48] Speaker 00:
indicate that it doesn't lift the responsibility of the state to really care for them in almost every necessary need that they may have.

[00:04:59] Speaker 00:
Am I right?

[00:05:00] Speaker 03:
Absolutely, Your Honor.

[00:05:01] Speaker 03:
That is correct.

[00:05:02] Speaker 03:
And that is a distinction that the court completely missed in rendering its decision.

[00:05:07] Speaker 03:
And it created reversible error by doing so.

[00:05:10] Speaker 03:
The record in this case was replete with evidence of how the state's legal custody

[00:05:16] Speaker 03:
pervaded any relationship with a parent during these temporary visits.

[00:05:21] Speaker 03:
For instance, the named plaintiffs Wyatt and Noah were placed with their mother, and the state ordered them to live with the mother's former foster mother in Portland.

[00:05:32] Speaker 03:
And then in the middle of that stay, the mother, excuse me, DHS changed their mind and ordered the mother to go live in Salem so she could get services in Salem.

[00:05:45] Speaker 03:
The situation in Deshaney was that Wisconsin just withdrew from the scene.

[00:05:49] Speaker 03:
They were not involved.

[00:05:51] Speaker 03:
Joshua was at home with his father, and that was the only relationship at stake.

[00:05:56] Speaker 03:
In these temporary parental visits, the state is pervasively in charge of the whole process.

[00:06:01] Speaker 03:
They can end it at any time, and they frequently do.

[00:06:04] Speaker 00:
Let me ask you something.

[00:06:05] Speaker 00:
Obviously, you know as well as anyone, having been involved in these cases for a long time,

[00:06:13] Speaker 00:
that there is a fundamental constitutional substantive due process right of the parent to have guidance control over the child.

[00:06:25] Speaker 00:
I mean, that's as fundamental as anything else in due process.

[00:06:30] Speaker 00:
Is that why we have this issue?

[00:06:33] Speaker 00:
Because they are, although still in legal custody of the parents,

[00:06:39] Speaker 00:
that the parents, once they have custody, is there some issue about whether or not they should then have control which competes with the control that the government has as defined by statute?

[00:06:55] Speaker 00:
Is that the problem here?

[00:06:57] Speaker 00:
Is that what perhaps the issue was before the district judge?

[00:07:02] Speaker 03:
So part of the problem with analogizing a situation where a child is in the legal custody of the state with cases like Duchenne where a child is not is that the parental control, while the state has legal custody, is essentially eradicated.

[00:07:17] Speaker 03:
So for instance, we pointed the court in our briefing to a case saying that Oregon can force foster children to be vaccinated over the objections of their natural parents while they are in foster care.

[00:07:31] Speaker 03:
That decision-making authority to make health care decisions, the fundamental rights of parents, that is extinguished.

[00:07:39] Speaker 00:
The child's... Okay, so that's my point, is that we start with, and a lot of the case law, you know as well as anybody, again, that there is a constitutional right that parents have, and it's a fundamental right.

[00:07:55] Speaker 00:
So I thought perhaps that was the reason that there was this conflict maybe by the district court judges to once you put them back in the custody, temporary custody of the parents, the parents then gained some rights over the children.

[00:08:11] Speaker 03:
There is no legal distinction between a child who is in the legal custody of DHS who is placed in a parent's home and a child in the legal custody of DHS who is placed in a foster parent's home or a congregate care facility.

[00:08:23] Speaker 03:
They are all the same legally.

[00:08:24] Speaker 03:
They are all in the legal custody of the state.

[00:08:27] Speaker 03:
And the state can pull them out from one placement, can pull them out of a placement with a parent and put them in with a foster parent or put them into a congregate care facility, as indeed happened to numerous of our named plaintiffs.

[00:08:39] Speaker 01:
Thank you.

[00:08:40] Speaker 01:
The district court found that your complaint was focused a lot on children in foster care.

[00:08:48] Speaker 01:
And there are many, many references throughout this lengthy complaint about children in foster care.

[00:08:55] Speaker 01:
Are there specific parts of the complaint where you're saying that includes children temporarily placed with their parents?

[00:09:03] Speaker 03:
Yes, Your Honor.

[00:09:04] Speaker 01:
Where do we look for that?

[00:09:04] Speaker 01:
Is that just on individual allegations as to specific name plaintiffs, or where do we find that?

[00:09:10] Speaker 03:
So briefly, we talked a lot about children who are in substitute foster care, meaning they're placed with a foster parent or

[00:09:17] Speaker 03:
congregate care because that represents the majority of children in foster care.

[00:09:21] Speaker 03:
But we did speak to the needs of children who are placed with parents.

[00:09:26] Speaker 03:
In the complaint, we raised specific allegations about one of our named plaintiffs, Unique, who was placed on a temporary home visit with a parent.

[00:09:35] Speaker 03:
And that visit went all kinds of wrong.

[00:09:42] Speaker 03:
It ended up in a screaming

[00:09:45] Speaker 03:
expletive laden rant by the mother against the child which deeply traumatized unique and Following that failed placement.

[00:09:53] Speaker 03:
She spent months in treatment facilities in Oregon and out of state It was a real Shocking abandonment of this child to

[00:10:07] Speaker 03:
A placement that she had no business being in.

[00:10:09] Speaker 03:
There was no basis for putting her with her mother.

[00:10:11] Speaker 03:
Everyone agreed that she did not, her mother was nowhere near ready to take care of her at that time.

[00:10:17] Speaker 03:
And Unique was the one who ended up being traumatized by the state.

[00:10:20] Speaker 01:
So when you say a child is in foster care, you are not including temporary home visits with the parent, or you are?

[00:10:28] Speaker 03:
Foster care includes children who are in temporary home visits with the parent, which the district court actually found in the class certification opinion.

[00:10:35] Speaker 03:
The district court listed out

[00:10:37] Speaker 03:
different types of children in foster care, including children on temporary home visits in the district court's August 2022 order.

[00:10:47] Speaker 01:
I suspect your opposing counsel is going to come up and look at the language in Deshaney and Patel and other cases that say it has to be akin to incarceration.

[00:11:00] Speaker 01:
What's your response to that?

[00:11:04] Speaker 03:
Well, so one answer is for 30 years, this court has repeatedly compared the treatment of children in foster care to people who are incarcerated.

[00:11:12] Speaker 03:
So, for instance, in Gibson v. Merced County of Department Human Resources, this court directly compared the authority of the prison system to move prisoners from prison to prison within their own system.

[00:11:23] Speaker 03:
to the authority of a Department of Child Welfare to move children from home to home and saying that a child had no more right to not to be moved from foster home A to foster home B than a prisoner had a right to be moved from prison A to prison B. And did any of those include parents?

[00:11:41] Speaker 03:
I don't know if any of them specifically included parents.

[00:11:44] Speaker 03:
The most on point case regarding visitation with parents of children who are in the legal custody of the state is of course Cox.

[00:11:51] Speaker 03:
And that is a case where

[00:11:53] Speaker 03:
two children who were brought into foster care were allowed to have a visit with their father, and during that visit, their father murdered them.

[00:12:02] Speaker 03:
Now, in that case, this court specifically held that, quote, where children are in state custody, the 14th Amendment Substantive Due Process Clause protects their liberty interest in social worker supervision and protection from harm inflicted by a third party.

[00:12:19] Speaker 03:
Now, in Cox, the only third party who harmed the children was the parent.

[00:12:23] Speaker 03:
So I think Cox stands for the proposition that the state owes a duty to protect children against abuse, including from their own parents, while the children are placed in the legal custody of the state.

[00:12:39] Speaker 03:
And that has been the repeated nexus.

[00:12:42] Speaker 03:
of all special relationship cases involving, of which there are many in the Ninth Circuit, that legal custody triggers the state's legal obligations to the child.

[00:12:51] Speaker 03:
That's from B.K.

[00:12:52] Speaker 03:
Exrell Tinsley V. Snyder.

[00:12:56] Speaker 03:
In Henry A., this court stated that the special relationship arises where the state assumes some responsibility for the plaintiff's safety and well-being.

[00:13:05] Speaker 03:
It does not need to be total.

[00:13:08] Speaker 03:
And the TAMAS

[00:13:10] Speaker 01:
opinion that stated that- Since we're running out of time, let me ask you quickly.

[00:13:13] Speaker 01:
Are you arguing that children who are not removed from their parents are eligible for the state created danger exception?

[00:13:23] Speaker 03:
If the state has created the danger, although in that case, if the state has not actually created a danger, has not changed the circumstances, it might very well be factually that that might not arise.

[00:13:35] Speaker 03:
But it is certainly possible, as I think Margiela V. Langdon indicates

[00:13:39] Speaker 03:
for a state-created danger to arise from the state's failure to protect a child from a parent.

[00:13:49] Speaker 01:
Okay, so do you think that the state has enhanced the risk of danger if it's never removed the child from the parent's home?

[00:13:58] Speaker 03:
In that circumstance, I would surmise that in most cases there is not likely to be a state-created danger issue if there's never been a removal.

[00:14:07] Speaker 01:
Okay.

[00:14:08] Speaker 01:
Let me see if my colleagues have any more questions.

[00:14:11] Speaker 01:
No.

[00:14:11] Speaker 01:
Okay.

[00:14:11] Speaker 01:
I'll give you two minutes for rebuttal, plus you have about a minute left.

[00:14:14] Speaker 03:
Thank you so much, Your Honor.

[00:14:28] Speaker 02:
May it please the court and counsel Christopher Perdue for the state defendants.

[00:14:32] Speaker 02:
This court should affirm the district court's judgment for two reasons.

[00:14:36] Speaker 02:
First, the district court properly viewed this dispute as one about the scope of plaintiff's allegations vis-a-vis the due process clause, not as one about contract interpretation in a fully formed integrated settlement agreement.

[00:14:50] Speaker 02:
And second, the district court properly resolved the dispute when it held that children in the physical custody of their parents were not in the class of children at issue in this case.

[00:15:01] Speaker 02:
I'll start with Deshaney.

[00:15:03] Speaker 02:
In Deshaney,

[00:15:04] Speaker 02:
the U.S.

[00:15:05] Speaker 02:
Supreme Court held that a child cannot- Can I ask you a question?

[00:15:08] Speaker 01:
I'm looking at the district court's class certification order, and it says, membership in the general class is as follows.

[00:15:15] Speaker 01:
All children for whom the Oregon Department of Human Services has or will have legal responsibility and who are or will be in the legal or physical custody of DHS.

[00:15:29] Speaker 01:
It put an or in there and did not require physical custody.

[00:15:34] Speaker 01:
And then if I look at the complaint, you know, when it's describing as of March 30, or not the complaint, sorry, this is a class third order still.

[00:15:44] Speaker 01:
As of March 31, 2019, there were 7,260 children in Oregon foster care, 12% were on trial home visit status, meaning they were living with their parents or caregivers while DHS retained custody.

[00:16:00] Speaker 02:
At least from this order it seems like the district court included children living at home With their parents on a trial home visit Yes, sir honor, and we can't dispute that the word or is used in the initial class definition However throughout the litigation the assumption of the parties, and I think even of the district court

[00:16:25] Speaker 02:
was that the district court was not certifying this subset of children over whom the state has legal custody but not physical custody.

[00:16:34] Speaker 01:
But why if there's the or is there in the class cert order and the class cert order is saying children on trial home visits with parents are included in my definition of children in Oregon foster care?

[00:16:47] Speaker 02:
The best evidence is in a later discovery dispute that arose and that we described in our briefing.

[00:16:53] Speaker 02:
Toward the end of trial preparation, the plaintiffs indicated that they wanted to admit evidence relevant to harm suffered by children in the physical custody of their parents.

[00:17:07] Speaker 02:
The defendants objected on relevance grounds, and the district court resolved this dispute by considering the plaintiff's allegations

[00:17:16] Speaker 02:
and determining, first, that the plaintiffs didn't sufficiently allege that children suffered harm in the care of their parents.

[00:17:24] Speaker 02:
And that's at SCR 21.

[00:17:27] Speaker 01:
And second, even if the- I don't see how a later discovery order undoes a class certification order, which defines the membership of that class.

[00:17:40] Speaker 02:
We don't maintain that it undoes the class certification order, but it did give rise to confusion between the parties and I think even the district court about what really the district court was certifying in the original class certification order.

[00:17:53] Speaker 02:
And that is the origins of this dispute on appeal.

[00:17:56] Speaker 02:
What set of children belong in the general class based on

[00:18:01] Speaker 02:
On the one hand, the certification order, which, as your honor notes, says or.

[00:18:05] Speaker 02:
And on the other hand, the district court's resolution of this evidentiary dispute, where the only way to understand its ultimate conclusion is to assume that the district court did not think that children who are in the physical custody of their parents were part of the general class in this case.

[00:18:23] Speaker 00:
Let me ask you, though.

[00:18:24] Speaker 00:
Why wasn't there a motion to amend then?

[00:18:28] Speaker 00:
I mean, a motion to amend that because the words are still there.

[00:18:32] Speaker 00:
It's or.

[00:18:33] Speaker 00:
So, and if it's or, then you go back to the definition of what legal status is.

[00:18:38] Speaker 00:
And legal status defines the word ward.

[00:18:42] Speaker 00:
And those children are considered, those children, whether or not they are in the custody of their parents or outside the custody of their parents,

[00:18:52] Speaker 00:
are still, they are still under legal custody.

[00:18:58] Speaker 00:
They're required by the state to have, the state has significant obligations with respect to those children as with all wards, including, of course, those wards that are in prison.

[00:19:11] Speaker 00:
There's no distinction, is there?

[00:19:13] Speaker 00:
A ward is a ward under legal custody, even though obviously when the prisoners are in legal custody,

[00:19:22] Speaker 00:
because they have no control over their lives at all.

[00:19:30] Speaker 00:
The state has a 100% obligation.

[00:19:33] Speaker 00:
And with children, it's not so, because they're not incarcerated.

[00:19:40] Speaker 00:
But still, the definition is the same, isn't it?

[00:19:43] Speaker 02:
Your Honor, I'm not sure the definition is the same across those domains.

[00:19:47] Speaker 00:
Tell me why.

[00:19:48] Speaker 00:
Because the words in the statute appear to be the same.

[00:19:51] Speaker 00:
with respect to the obligations of the state.

[00:19:55] Speaker 00:
And unless there's case law that distinguishes and said the words that are in the statute that define a ward are different for children, then they are the same.

[00:20:06] Speaker 02:
Your Honor, I don't know of a case that distinguishes directly children who are in the legal custody of the state and then incarcerated persons or persons who have been involuntarily civilly committed.

[00:20:20] Speaker 02:
But I can say that in the former or the latter category of people over whom the state has complete control, those are the situations that DeShaney and its progeny have analogized to.

[00:20:34] Speaker 02:
In a situation where the state has responsibilities and duties to children because they have been brought into the foster care system, but parents are exercising primary caregiving duties on a day-to-day basis.

[00:20:51] Speaker 00:
You weren't dealing with statutes.

[00:20:52] Speaker 00:
The Supreme Court, what we're looking at the situation, is this like a tort situation?

[00:20:59] Speaker 00:
Possibility of the court said no.

[00:21:01] Speaker 00:
We're dealing with the Constitution, so it's not.

[00:21:04] Speaker 00:
But here, the state can and did take responsibility for the children as in their legal custody.

[00:21:14] Speaker 00:
And that definition is in the statute.

[00:21:17] Speaker 00:
And that requires that they have complete control over the children, even if they are in the custody of the parents temporarily.

[00:21:28] Speaker 00:
That's the way I look at it.

[00:21:29] Speaker 00:
Tell me I'm wrong.

[00:21:31] Speaker 02:
Your Honor, it's for you to determine the best interpretation, obviously, of DeShaney and these statutes.

[00:21:37] Speaker 02:
But I'd make two points.

[00:21:39] Speaker 02:
The first is a point that you mentioned during my friend's opening remarks.

[00:21:44] Speaker 02:
Do process rights of parents make them as caregivers different?

[00:21:47] Speaker 02:
That was an issue at DeShaney.

[00:21:49] Speaker 02:
I think that was on the mind of the district court here.

[00:21:51] Speaker 02:
It's not the same to put a child in the care of a substitute caretaker than it is to put it in

[00:21:59] Speaker 02:
the care of a parent.

[00:22:00] Speaker 02:
They're just simply categorically different.

[00:22:01] Speaker 02:
If you disagree with me on that premise... Well, why is that the case?

[00:22:05] Speaker 01:
If you look at the Oregon statute with regard to children, once the state has legal custody, they have the authority to have physical custody and control of the child, to supply the child with food, clothing, shelter, and incidental necessaries, with education discipline.

[00:22:21] Speaker 01:
to authorize ordinary medical, dental, psychiatric, psychological, and other care.

[00:22:26] Speaker 01:
The parents don't have the authority to do that on these trial home visits.

[00:22:30] Speaker 01:
At any point, the state can withdraw the kids from the parents' home.

[00:22:36] Speaker 02:
That's true.

[00:22:37] Speaker 01:
I mean, Deshaney was different because that child was never in the legal custody of the state.

[00:22:41] Speaker 02:
Well, let me make one distinction.

[00:22:43] Speaker 02:
I don't think it's as helpful to our position as maybe I would hope, but there was a temporary custody

[00:22:51] Speaker 02:
Change into Shani that is the child was put in the temporary custody of a hospital for three days at the end of treatment a committee decided whether to put Joshua back into the care of his father under a voluntary safety agreement with state services provided on a monthly basis or more frequently and that is where state social service workers Observe signs of abuse and harm in Joshua so it's not as though the state dropped out of the picture in the way that

[00:23:18] Speaker 02:
that my friend is describing in Deshaney.

[00:23:20] Speaker 02:
In fact, the state was present, at least on a monthly basis.

[00:23:23] Speaker 01:
Are you asserting that the state had legal custody of Joshua in Deshaney?

[00:23:27] Speaker 02:
No.

[00:23:27] Speaker 02:
Joshua's never the ward of the state.

[00:23:29] Speaker 02:
But I'm also not aware of a case in this circuit that directly addresses this distinction.

[00:23:35] Speaker 02:
I will acknowledge that there are many cases in this circuit that describe, in general terms, the obligations of the state and the rights of children in their custody.

[00:23:46] Speaker 02:
But they never make the distinction that's an issue here.

[00:23:49] Speaker 00:
But let me ask you, counsel.

[00:23:51] Speaker 00:
So the hypothetical I gave to your friend is that there is, obviously, and you're bringing it up again, there is a constitutional fundamental constitutional right of parents to bring up their children.

[00:24:06] Speaker 00:
But you're not here on behalf of those parents.

[00:24:09] Speaker 00:
You're here on behalf of the state.

[00:24:12] Speaker 00:
And you're wanting to relinquish the responsibility

[00:24:16] Speaker 00:
But the state has decided we want responsibility.

[00:24:23] Speaker 00:
We have defined them as wards in the broadest possible sense, which is not what you had in Descheney.

[00:24:31] Speaker 00:
So your concern is we don't want this responsibility.

[00:24:37] Speaker 00:
Isn't that it?

[00:24:39] Speaker 00:
while they're in the custody of the children.

[00:24:41] Speaker 00:
Maybe it's because, and I'm not saying that you're heartless, that the state is heartless at all, but because maybe you don't have control.

[00:24:50] Speaker 00:
You can't control the parents.

[00:24:52] Speaker 00:
They have temporary control.

[00:24:54] Speaker 00:
And so what can we do?

[00:24:55] Speaker 00:
Are we supposed to sit there at the door and make sure they're not being abused?

[00:25:00] Speaker 00:
I can see your point of view.

[00:25:02] Speaker 00:
But you're not protecting the constitutional right of the parents, right?

[00:25:08] Speaker 02:
Your Honor, we're not standing in place to defend the constitutional rights of the parents.

[00:25:12] Speaker 02:
That's true.

[00:25:13] Speaker 02:
But even in Oregon, by statute, the state recognizes and tries to promote services that are consistent with the due process rights of parents and legal guardians.

[00:25:24] Speaker 02:
And I think that is the balance that is difficult to strike in addressing this distinction.

[00:25:30] Speaker 02:
In most cases in the Ninth Circuit,

[00:25:32] Speaker 02:
The children at issue are fully removed from parental care and put into the foster care or substitute care system.

[00:25:41] Speaker 02:
And in those cases, we don't see allegations about harm suffered by children in the care of their parents.

[00:25:48] Speaker 02:
You're correct that the state of Oregon does not want to be heartless here.

[00:25:52] Speaker 02:
The state of Oregon promotes the general welfare.

[00:25:54] Speaker 01:
What about Merdia?

[00:25:55] Speaker 01:
That was in the biological mother's care who drowned the twins in the hotel.

[00:26:00] Speaker 02:
That's true.

[00:26:01] Speaker 01:
Why is it different if the state knows of a danger to the children, but knowingly places them with a foster parent or a biological parent?

[00:26:13] Speaker 01:
Why would the state created danger exception apply?

[00:26:16] Speaker 01:
Why would it not apply?

[00:26:18] Speaker 02:
Two points.

[00:26:19] Speaker 02:
The state created danger exception may apply under highly specific factual situations.

[00:26:25] Speaker 02:
It's a suit that would remain even to

[00:26:29] Speaker 02:
plaintiffs in this class, depending on the settlement agreement.

[00:26:33] Speaker 02:
But if people similarly situated suffered harm, for instance, in the care of their parents.

[00:26:38] Speaker 01:
Well, what about Unique?

[00:26:39] Speaker 01:
Unique's mother said she is not ready to have custody of Unique, but the state went ahead and put Unique with the mother.

[00:26:45] Speaker 01:
Why isn't that the state placing a child in a situation with a parent where there's a known danger?

[00:26:54] Speaker 02:
The standard for establishing liability under the state created danger theory is first to establish that the state was aware of a risk of harm, particularized to the plaintiff that otherwise wouldn't have existed.

[00:27:08] Speaker 02:
Second, that the state official was aware of that harm and was aware it was foreseeable.

[00:27:14] Speaker 02:
And third, that the state official was deliberately indifferent to the risk.

[00:27:18] Speaker 02:
Those kinds of allegations we do not see in this complaint.

[00:27:21] Speaker 02:
Even though we do have some allegations about an episode in the case of unique and a mention of an episode in the case of Noah and Wyatt what we don't see are the allegations setting forth the elements of the state created danger theory and that's important because first the district court correctly found that plaintiffs never pled that theory and

[00:27:43] Speaker 02:
Second, even if they had played that theory.

[00:27:46] Speaker 01:
Wait, I thought the complaint at ER 531 says that Unique's mother's therapist had a formed ODHS that Unique's mother was not ready to have unique return to her care.

[00:27:59] Speaker 01:
You're now saying ODHS never received that information.

[00:28:04] Speaker 02:
I'm saying that the allegations I set forth in the complaint don't satisfy the requirements of the elements of the state created danger exception.

[00:28:12] Speaker 02:
We don't see the state created danger exception mentioned and we certainly don't see the type of factor by factor allegations that you'd expect to see in a complaint invoking that theory.

[00:28:24] Speaker 02:
And the reason I think is that that theory would not be susceptible to class wide resolution.

[00:28:29] Speaker 02:
It's the kind of theory that's best suited

[00:28:31] Speaker 02:
for individual cases where plaintiffs can allege specifically the harms at issue, the officials who were deliberately indifferent to those foreseeable harms.

[00:28:42] Speaker 02:
That's why the district court, I think, found that this theory wasn't sufficiently pled.

[00:28:46] Speaker 02:
And the district court was right on that point.

[00:28:47] Speaker 02:
But to get back to your question about Merguia.

[00:28:50] Speaker 01:
Well, I mean, I'm looking at the complaint paragraph 78.

[00:28:55] Speaker 01:
explicitly says, despite the fact that the mother's therapist had informed DHS that the mother was not ready to have Unique return to her care, DHS nevertheless returned Unique to her mother when they were unable to locate a therapeutic placement for her.

[00:29:07] Speaker 01:
Inexplicably, DHS simultaneously sought to dismiss the case, however, over Unique's attorney's objection.

[00:29:15] Speaker 01:
So why is that not knowledge on the part of the state?

[00:29:20] Speaker 02:
Well, Your Honor, if Unique brought an individual

[00:29:23] Speaker 02:
action under the state created danger theory, that allegation would certainly be part of setting forth sufficient allegations under that theory.

[00:29:31] Speaker 02:
I see that I'm almost out of time.

[00:29:33] Speaker 02:
Can I finish my thought?

[00:29:34] Speaker 01:
Go ahead, please.

[00:29:35] Speaker 02:
Those allegations are not in this complaint.

[00:29:38] Speaker 02:
For that reason, the district court properly concluded that the complaint was insufficient.

[00:29:44] Speaker 02:
And for those reasons, in addition, we'd ask this court to affirm the judgment.

[00:29:48] Speaker 01:
Let me see if my colleagues have any further questions.

[00:29:52] Speaker 01:
No, thank you very much.

[00:29:53] Speaker 01:
Okay, you have two minutes.

[00:29:57] Speaker 03:
Your Honor, when a child is placed with a foster parent, it is beyond dispute by both the parties and well established under this case law, when a child is placed with a foster parent, that child is in the physical custody of the state, even though that foster parent wakes the child up in the morning, gets them breakfast, gets them on the school bus.

[00:30:15] Speaker 03:
State employees don't come out to the foster parent's house and take care of those routine duties.

[00:30:21] Speaker 03:
What makes

[00:30:22] Speaker 03:
The custody of the foster parent subject to the protections of substance of due process is the overarching legal responsibility of the state to make sure that, one, that they've placed the child in an appropriate home, that they're providing appropriate services, that they're ensuring the safety of the child.

[00:30:39] Speaker 03:
How is that truly different from a placement that is with a biological parent that is still covered by that overarching legal authority of the state?

[00:30:48] Speaker 03:
The state still has that exact same authority

[00:30:51] Speaker 03:
to make sure that the child... address your opposing counsel's point about this evidentiary dispute so uh... this is just there's no basis for this the simplest answer your honor is that the party stipulated to the definition of the general class in the settlement agreement at 228 class means the general class certified by the court in its opinion and order dated august seventeenth twenty twenty two so if the if the state believe that the

[00:31:19] Speaker 03:
general class definition had somehow mutated over time, which is not... Where is that in the settlement agreement?

[00:31:25] Speaker 03:
It's 2ER228 is the page number.

[00:31:29] Speaker 03:
So it's in the definitions in the first section.

[00:31:32] Speaker 03:
There's a definition of class at the very top of the settlements agreement.

[00:31:39] Speaker 01:
So if the state had a problem with these... Yeah, but if you look above that, it says children in care means children who are in the legal and physical custody of ODHS.

[00:31:48] Speaker 03:
And then it goes on to say that there's a dispute between the parties as to whether that goes on to include other children.

[00:31:58] Speaker 03:
And so that's where the dispute is.

[00:32:01] Speaker 03:
So it's clear in the drafting of the settlement agreement that there was a dispute over whether children in care included children placed with their parents.

[00:32:11] Speaker 03:
But what the state has failed to produce, discovery, dispute, or no,

[00:32:17] Speaker 03:
that there is any time when discovery disputes can undermine the authoritative pronouncement of what a general class definition is.

[00:32:26] Speaker 03:
There is just no authority for that.

[00:32:28] Speaker 03:
It doesn't exist.

[00:32:29] Speaker 03:
It is not a legal concept.

[00:32:30] Speaker 00:
So when that dispute occurred, no one made an effort or the state didn't make an effort to amend the settlement?

[00:32:38] Speaker 03:
No.

[00:32:38] Speaker 00:
And the state had... Even though apparently there was some dispute about what the custody of the

[00:32:48] Speaker 00:
the child was while they were in the parents custody.

[00:32:53] Speaker 03:
The state had years in which it could have filed a motion to alter, amend or even dissolve the class or to file a motion for partial summary judgment if it wanted to on any of these issues.

[00:33:03] Speaker 03:
And I will note that in as early as our class certification briefing in 2019, we continued to push the issues of trial home visits.

[00:33:12] Speaker 03:
We had two different experts commenting on trial home visits.

[00:33:16] Speaker 03:
In 2019, this was not an issue that fell away.

[00:33:18] Speaker 03:
This was an issue that remained present throughout the case.

[00:33:23] Speaker 03:
So we preserved that argument at all times.

[00:33:27] Speaker 03:
It continued to be a live issue in those proceedings.

[00:33:33] Speaker 03:
I think it's very important to acknowledge that the state does have an obligation when it places a child with a foster parent to make sure that that home is safe.

[00:33:42] Speaker 03:
That is the essence of the state created danger in that context.

[00:33:45] Speaker 03:
And there is no reason, particularly since a parental home visit does not have to be with the original custodial parent, it could be with a parent with whom the child has not been living prior to the state's supervision of the child.

[00:33:59] Speaker 03:
The state has that same obligation not to put that child in danger.

[00:34:04] Speaker 03:
And if they place that child in a home where they are in danger, they violate other duties.

[00:34:08] Speaker 01:
I think your time has expired.

[00:34:10] Speaker 01:
And let me ask if my colleagues have any further questions.

[00:34:14] Speaker 01:
No, thank you very much.

[00:34:14] Speaker 01:
Thank you to both councils for the very helpful arguments.

[00:34:16] Speaker 01:
Today we're adjourned.