U.S. Appeals Court Ruling Could Alter State’s Foster Care Payments

In a decision with potential ramifications for California, the U.S. 9th Circuit Court of Appeals ruled Thursday that Oregon’s denial of foster care funding to children who live with close relatives is unconstitutional.

Three foster children sued the state of Oregon, asserting that state regulations were illegal and unfair because they granted less financial aid to relatives who act as foster parents than to other foster parents, thus discouraging relatives from taking on this role.

The children “have a constitutionally protected . . . interest in being placed with relatives,” said the unanimous decision, written by Judges Dorothy W. Nelson, Betty B. Fletcher and Procter Hug Jr.

The judges also said that “the state must assist children in its custody to exercise their constitutional right to live with fit members of their family.”

California has regulations that mirror those of Oregon and public interest lawyers said they might bring a federal court suit seeking to overturn the state’s rules in light of the 9th Circuit decision.

The decision cited previous cases which have held that the right to associate with family members is protected by the 14th Amendment’s due process clause.

The decision said that Oregon had illegally burdened the constitutional right to associate with family members when it adopted policies that prevented family members from living together.

“No right is more sacred, and this right can be abrogated only to protect other very important interests,” the judges said.

The judges added that “the constitutionally protected ‘family’ extends beyond the nuclear family” of mother, father and child.

“This is a wonderful decision,” said Pamela Mohr of Public Coun sel, the public interest arm of the Los Angeles and Beverly Hills Bar Assns. She said the decision ultimately could pave the way for thousands of children in Los Angeles to live with relatives who currently cannot afford to pay their expenses.

Los Angeles County has 35,000 children under court supervision, more than any other county in the nation, Mohr said.

The county needed at least 3,000 more foster homes in 1986 and the number has increased since then because a growing number of children must be separated from drug-addicted parents, according to Terry Carbaugh, an aide with Assemblyman Rusty Areias (D-Los Banos).

Equal Payments

Areias authored legislation requiring relatives to be paid the same amount as non-relatives taking in foster children. The bill has passed the Legislature twice, but was vetoed by Gov. George Deukmejian. This year, the legislation did not clear the Assembly Ways and Means Committee because another veto was expected.

At present, the payout differences are significant. For instance, a non-relative with foster children ages 9, 12 and 15 receives $1,130 a month in California; a relative with foster children those ages receives $663 a month--a difference of $467 a month.

Paying relatives who act as foster parents the same as strangers who take in children would cost California about $72 million, state officials have estimated.

The case stemmed from the problems of three Oregon foster children--Sheri Lipscomb, Autumn Scalf and William Scalf. The suit was filed by Portland civil rights lawyers Emily Simon and Mark Kramer as a class action on behalf of the three and all others in the same circumstances.

Lipscomb was a multihandicapped child of 15 when the suit was filed in February, 1987. Simon said Lipscomb had been in a severe car accident when she was 21 months old, had cerebral palsy and was permanently confined to a wheelchair.

She lived with her parents until Dec. 11, 1985. On that day she was taken from her drug-addicted parents and put in a Portland children’s shelter. Soon thereafter, she was made a ward of the court, which placed her with her aunt and uncle, Carolyn and Robert DeFehr. The DeFehrs feared that they would have to give up custody of Lipscomb because they could not afford to pay her high medical bills and joined the suit in hope of changing the Oregon system, Simon said.

Autumn Scalf was 12 and her brother William was 10 when they taken from their parents in October, 1985, after police in a Portland suburb found them unattended when they responded to a trash fire in the Scalf yard. Autumn and William also were made wards of the court and a local judge decided that placing them with their aunt and uncle, Gloria and Ron Self, was their best option. Seven months later, however, the Selfs gave up the children because they could not afford to keep them.

Simon said the children were “caught in a Catch-22 situation. The state decided it was in their best interest to be placed with their relatives but the state also decided” that it would not pay the relatives as much to care for them as strangers would get. Oregon asserted that it had no constitutional obligation to fund the children’s exercise of their constitutional right. The U.S. 9th Circuit Court of Appeal flatly rejected this contention.

Constitutional Obligations

“By removing children from their parents’ custody, making them wards of the state, and placing them in foster care programs, the state of Oregon established a special relationship with these children and thus assumed special constitutional obligations toward them. The state’s obligation includes a duty to assist the children to exercise their constitutional right,” the court ruled.

Thursday’s decision flies squarely in the face of a 1986 California appeals court decision. That decision held that the California system did not violate the equal protection clause of the California Constitution.

While the federal decision does not overturn the California ruling, it is an invitation to interested parties to file a new suit in federal court challenging the California rules, according to Alice Brussiere, an attorney with the National Center for Youth Law in San Francisco.

She called Thursday’s decision “very significant. The California Department of Social Services will have to look at its policy. It looks like it’s unconstitutional because it does what the Oregon policy did.”

Kathleen Norris, a spokesman for the department, said she could not make any immediate comment because department attorneys had not seen the decision. But she said that when Deukmejian vetoed Areias’ bill in September, 1987, department officials estimated that it would cost California $72 million to provide equal benefits to relatives taking in foster children.