Children Need Lawyers: Part Two, How Children Harmed by DHS Lose their Rights & Proposed Reforms to Preserve Them

This article was published in the Juvenile Law Reader, Volume 15, Issue 1, Spring 2018.

The State of Oregon is failing to protect the legal rights of children who are harmed due to acts or omissions of the Department of Human Services (DHS).  The rights of children to seek justice for their injuries fall through the cracks for a number of reasons. First, under the law, a child’s right to seek compensation for injuries can vanish in as little as 270 days unless a responsible and legally savvy adult in the child’s life sends a required tort claim notice to the state.  Second, when a child suffers abuse or neglect due to the acts or omissions of DHS, the agency has no system in place—or incentive—to inform anyone about the child’s potential legal claim or to take any steps to ensure that the child’s rights are not lost due to tort claim notice or statute of limitations requirements. Third, although dependency lawyers have an important role in ensuring that children’s legal rights to seek redress for their injuries do not disappear, it is both ineffective and impractical to place upon dependency lawyers the entire burden of protecting the rights of children who are harmed by DHS.

This article explores these problems in greater detail and proposes a number of reforms for addressing them.

  1.  Unreasonably Short Time Limitations Strip Away the Rights of Children

As discussed in Part One of this article (see Children Need Lawyers Part I, Tort Claims and the Juvenile Dependency Lawyer, Volume 14, Issue 4, Winter 2017), claims against the State of Oregon and its agents and employees generally are governed by the Oregon Tort Claims Act (OTCA), which has a two-year statute of limitations.  ORS 30.275(9). Claims for civil rights violations against state employees under 42 U.S.C. § 1983 also must be commenced within two years. ORS 12.110; Sanok v. Grimes, 306 Or 259, 262 760 P2d 228 (1988).

ORS 12.160 tolls the running of the statute of limitations for a minor’s cause of action for up to five years, but for no more than one year after the minor reaches age 18. The five-year period for minor tolling under ORS 12.160 applies to claims against the state governed by the OTCA, and to federal law claims against state actors.  Smith v. OHSU Hospital and Clinic, 272 Or App 473, 356 P3d 142 (2015); Robbins v. State, 276 Or App 17, 366 P3d 752 (2016); Wallace v. Kato, 549 US 384, 397 (2007) (applying state’s minor tolling statute to calculation of timeliness of § 1983 claim).

Under the OTCA, with exceptions described below, a notice of claim must be submitted to the state within 180 days of the alleged loss or injury, or within one year if the claim is for wrongful death.  ORS 30.275(2). The tort claim notice deadline is extended an additional 90 days for minors. Id.  However, while ORS 12.160 tolls the statute of limitations under the OTCA, it does not toll the notice requirement.  Buchwalter-Drumm v. State of Oregon, 463 Or App 64, 71, _ P3d _ (2017).  Therefore, a child’s right to pursue a tort claim can vanish in as little as 270 days.

There is no justification for extinguishing a child’s right to seek justice 270 days after being harmed by a government actor.  Children are both legally and practically unable to protect their own rights—legally, because they cannot file a lawsuit on their own, and practically, because they do not have the knowledge or resources to do so.  When a child’s tort claim is subject to the 270-day notice requirement, protection of the child’s rights depends entirely on the fortuity of there being a responsible adult in the child’s life who is sophisticated enough to be aware of the tort claim notice requirement and take action.   However, if the child is in state custody, it is almost a given that there are no responsible adults in the child’s life who reasonably can be expected to protect the child’s legal rights.

In Washington, claims of minors are tolled until the minor turns 18 years old.  RCW 4.16.190. Tort claims are subject to a three year statute of limitations. RCW 4.16.080.  Therefore, in Washington, a child has until he or she reaches the age of 21 to file a tort claim.  Claims against the state generally are subject to a claim presentment requirement that the claimant wait 60 days after presenting the claim before filing suit.  RCW 4.92.110. In summary, a child harmed by the State of Oregon may have a deadline of 270 days to pursue a tort claim while a child harmed by the State of Washington has until they are 21 years old to pursue a tort claim.

There is also an incongruity between the OTCA’s oppressive notice requirements for minors and ORS 12.117, which is the statute of limitations that applies to all non-government child abusers, and those that knowingly allow, permit or encourage child abuse.  Under ORS 12.117, a victim of child abuse has until age 40, and potentially even longer under a discovery rule, to bring a claim against private individuals and organizations. Why does the state get a pass in as little as 270 days?

Some claims of children harmed by DHS are saved by ORS 30.275(8), which provides that a tort claim notice is not required if the claim is against DHS or the Oregon Youth Authority, the claimant was under the age of 18 when the acts or omissions giving rise to the claim occurred, and the claimant was in the custody of DHS or the Oregon Youth Authority when the acts or omissions giving rise to the claim occurred.  Unfortunately, some children’s claims fall through the cracks of this provision.

For example, Oregon DOJ has taken the position that the tort claim notice exception for children in state custody under ORS 30.275(8) does not apply to claims against foster parents.  The exception under ORS 30.275(8) also does not apply if, for example, multiple calls about a child were made to the child abuse hotline, but the child died and was never in DHS custody.  Moreover, the exception does not apply if the harm-causing acts or omissions of DHS occurred when the child was not in custody, and then the child subsequently was taken into DHS custody, as was the case in Buchwalter-Drumm, supra.

A discovery rule applies to both the notice and statute of limitations requirements for claims subject to the OTCA.  Edwards v. State, 217 Or App 188, 197 175 P3d 490 (2007) (“The notice and commencement periods set forth in the OTCA begin to run when the plaintiff knows or, in the exercise of reasonable care should know, facts that would make an objectively reasonable person aware of a substantial possibility that all three of the following elements exist: an injury occurred, the injury harmed one or more of the plaintiff’s legally protected interests, and the defendant is the responsible party.”) (internal citations and quotations omitted).  The relevant inquiry is when the injured child has a reasonable opportunity to discover his or her injury and the identity of the person responsible for that injury. Buchwalter-Drumm, 463 Or App at 73-74.  

The discovery rule is an imperfect remedy for preserving the rights of children.  The facts corresponding to each element of the discovery rule may not be clear, which results in litigation.  Moreover, the discovery rule may not save the claim of, for example, a young teenager who is old enough to be charged with knowledge of all three elements of the discovery rule, but is too young to understand the need to submit a tort claim notice within 270 days of acquiring that knowledge or to have the means to do so.

For similar reasons, it is extremely difficult to justify the five-year timeframe of the minor tolling statute, which gives a child a maximum of seven years to file a tort claim (five year minor tolling under ORS 12.160 plus two year statute of limitations under ORS 30.275(9) equals seven years).  What is the rationale for taking away the rights of a young teenager to seek compensation for abuse or neglect that occurs in DHS custody, particularly when there is no system in place for DHS to inform anyone about the child’s potential legal rights or to take any steps to ensure that the child’s rights are not lost on the agency’s watch?  

  1.  DHS has No System in Place to Notify Anyone about a Child’s Potential Claim

DHS has no rules, systems or procedures in place for notifying anyone—such as the child’s dependency attorney or the court—that a child harmed by acts or omission of DHS may have a potential tort claim against the agency, foster parents or other acting under its auspices. Nor is there any mechanism for ensuring a child’s potential legal rights do not vanish while the child is in DHS custody.  DHS has no incentive to implement such measures. Moreover, the agency has probably been aware for at least ten years that it may have an obligation to disclose potential tort claims, but has taken no steps to do so.

DHS arguably should have procedures in place to disclose to the child’s dependency attorney and/or the court the potential tort claims of children in its custody.  Absent such a requirement, a child’s right to seek compensation for harm caused by the agency and its agents is left to the happenstance that the child has a responsible adult in his or her life that recognizes the potential claim and takes action before it is too late.

  1.  Placing the Entire Burden for Preserving Children’s Rights on Dependency Lawyers Is Not Working

The author is not aware of any legal authority that definitely establishes whether the dependency lawyer is obligated to take steps to preserve a child client’s potential tort claim when, in the course of representing the child, the lawyer learns that the child may have a potential tort claim against DHS, foster parents or others involved in the child’s care.  As discussed in Part One of this article, this topic is the subject of a March 13, 2008 informal written advisory ethics opinion authored by Sylvia Stevens, then general counsel of the OSB. Ms. Stevens concludes that the court-appointed lawyer has no ethical obligation to “address” a tort claim that the lawyer learns about during the representation of his or her child client in the dependency matter.  However, the bar’s opinion does not discuss whether, in the absence of an obligation to represent a child client regarding a potential tort claim, the dependency lawyer nevertheless may be obligated to notify someone about the child’s potential tort claim or otherwise take steps to ensure the tort claim is not lost.

Standard 2 G. of the OSB performance standards that guide the actions of dependency lawyers, states that with respect to “collateral issues” such as potential tort claims, the lawyer has no obligation to represent the child client, but may have a duty to take some steps to protect the child’s rights:

“The child-client’s lawyer does not have an ethical duty to represent the child client in these collateral matters when the terms of the lawyer’s employment limit duties to the dependency case. However, the child-client’s lawyer may have a duty to take limited steps to protect the child client’s rights, ordinarily by notifying the child-client’s legal custodian about the possible claim unless the alleged tortfeasor is the legal custodian. In the latter case, ordinarily the child-client’s lawyer adequately protects the child client by notifying the court about the potential claim.”

Whether or not the dependency lawyer is ethically—or legally—obligated to take steps to protect a child client’s potential tort claim, the best practice is for the lawyer to take steps to ensure the child’s claim is not lost.  Dependency lawyers often are in the best position to learn about torts committed against their child clients. Since other participants in the dependency proceedings may be the ones committing the tortious acts or omissions, dependency lawyers frequently also are in the best position to take action on behalf of children to protect their tort claims.

Dependency lawyers have an important role in ensuring that when a child client suffers abuse or neglect due to the acts or omissions of DHS, foster parents or others involved in the child’s care, the child’s legal rights to seek redress for his or her injuries do not fall through the cracks.  Nevertheless, for the reasons discussed below, it is both ineffective and impractical to place upon dependency lawyers the entire burden of ensuring the rights of children who are harmed by DHS and its agents are not lost.

First, Standard 2 G. of the OSB performance standards does not create an across-the-board rule requiring dependency lawyers to take some steps to protect the child client’s potential tort claim in every case.  Instead, Standard 2 G. states in pertinent part that “* * * the child-client’s lawyer may have a duty to take limited steps to protect the child client’s rights * * * *” (emphasis added).  Moreover, some of the language in Standard 2 G. is cast in aspirational rather than mandatory language (“* * * the child-client’s lawyer should consider asking the court * * * to either appoint a guardian ad litem (GAL) for the child client * * * or issue an order permitting access to juvenile court records by a practitioner who can advise the court * * *.” (emphasis added).  As a result, placing the entire burden for preserving children’s rights on dependency lawyers results in a system in which there is no assurance that a child’s potential tort claim is preserved in a particular case.

Other participants in the dependency proceeding should play a role in ensuring children do not lose their legal rights to seek redress for neglect or abuse caused by acts or omissions of DHS.  As discussed above, DHS arguably should have procedures in place to disclose to the child’s dependency attorney and/or the court the potential tort claims of children in its custody. As discussed below, the courts should examine whether to expand their role too.

Second, it must be acknowledged that there may be a disincentive for a dependency lawyer to notify the court and/or make a referral to a tort lawyer when the child client may have a potential tort claim arising from injuries the child suffered while being represented by the dependency lawyer.  The dependency lawyer may perceive that he or she also may be in the cross hairs of a possible legal action brought on behalf of the child client. The fact that some dependency lawyers have a large volume of open matters and limited resources may be a further disincentive to spend the time necessary to ensure the child’s potential tort claim is not lost.

Third, when the dependency lawyer does act, there is no guarantee that the child’s rights will be preserved.  As discussed in Part One, Standard 2 G. provides that:

If a child-client’s lawyer, in the course of representing a child client under the age of 18, becomes aware that the child client has a possible claim for damages that the child client cannot pursue because of the child’s age or disability, the child-client’s lawyer should consider asking the court that has jurisdiction over the child client to either appoint a guardian ad litem (GAL) for the child client to investigate and take action on the possible claim or issue an order permitting access to juvenile court records by a practitioner who can advise the court whether to seek appointment of a GAL to pursue a possible claim.”

There is no state-wide system for courts to respond to a request from a dependency lawyer to appoint a GAL to investigate and take action on a potential tort claim, or to release confidential court records to a tort lawyer for the same purpose.  The author is aware of a case in Washington County in which a judge ordered the appointment of a GAL in response to such a motion from a dependency lawyer, but is also aware of a case in which a judge in a different county did not respond to such a request.  It is also not clear how the GAL’s services are to be paid. These issues should be examined by all stakeholders involved in child dependency cases.

  1.  The System Is Broken, Let’s Fix It

Our current “system” of ensuring that the rights of children harmed by DHS do not fall through the cracks consists almost entirely of a standing threat of disciplinary action by the bar and potential legal liability for dependency lawyers who do not act to protect a child client’s potential tort claim.  This arrangement is not working. The author proposes the following reforms to protect the rights of children in such circumstances.

  1.  Change State Laws Pertaining to Tort Claim Notice and Statute of Limitations.

Existing laws pertaining to tort claim notice and statute of limitations requirements have the effect of stacking the deck against children and depriving them of their legal rights when they are too young to protect themselves.  The rights of a child to seek justice for the acts or omissions of DHS should not be dependent upon the fortuity that the child has a responsible adult in his or her life to protect those rights. In most such cases, there is no responsible adult in the child’s life.  The best solution to remedy this unconscionable failure to protect children’s rights is for the legislature to extend the five-year minor tolling timeframe under ORS 12.160 to age 19 in all cases against public and private individuals and entities. This action, combined with eliminating for minors the tort claim notice requirement under ORS 30.275(2), would have the effect of giving children until they are 21 years old to pursue tort claims, just like in the State of Washington.  

At an absolute minimum, the legislature should amend ORS 12.160 so that the five-year minor tolling provision in that statute applies to the requirement to send a tort claim notice under ORS 30.275(2).  There is no justification for stripping away in only 270 days a child’s right to seek redress for harm caused by acts or omissions of DHS.

  1.  Require DHS to Disclose the Potential Tort Claims of Children in its Custody.

DHS should be required to disclose to a child’s dependency attorney and/or the court the potential tort claims of children harmed in its custody.  The entire burden of ensuring the rights of children harmed by DHS do not vanish should not fall on dependency lawyers. As the potential tortfeasor and the legal guardian of children in its custody, DHS should play a role in protecting the legal rights of children harmed by its actions and omissions.

  1.  Improve Procedures for Getting Potential Tort Claims to Lawyers.

When a dependency lawyer follows the performance standards and files a motion with the court requesting appointment of a GAL, or release of confidential court records to a lawyer who can advise the court whether to seek appointment of a GAL, there is no statewide system for courts to respond.  It also is not clear how a GAL is to be compensated for his or her services. All stakeholders in dependency cases should examine these issues and strive to establish a uniform system for ensuring that children’s potential tort claims get to lawyers who are capable of handling them.

Conclusion

For a variety of reasons, the State of Oregon is failing to ensure that children who are harmed due to the acts or omissions of DHS do not lose their legal rights to seek justice.  Fixing these problems will require a concerted effort by the legislature, DHS, and the courts. The solutions are within our reach. As a society, we can and must do better for our children.

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