Ninth Circuit Rules on Critical Foster Care Definition in Wyatt B. v Kotek Settlement
Court orders oversight to include all children and youth in state legal custody
MEDIA CONTACTS
Disability Rights Oregon: Melissa Roy-Hart, (503) 444-0026 | media@droregon.org
A Better Childhood: Marcia Lowry, (646) 808-7344 | mlowry@abetterchildhood.org
Portland, Oregon—Today, the U.S. Court of Appeals for the Ninth Circuit issued its decision that will significantly impact the scope of the May 2024 settlement agreement in the federal class-action lawsuit Wyatt B. et al. v. Kotek et al. By ruling that “child in care” includes all children and youth in the Oregon Department of Human Services’ (ODHS’) legal custody — not just those in physical custody — the court rejected the state’s attempt to limit which youth are entitled to relief under the agreement. This expanded definition means children still living in their parents’ home, or returned there on “trial home visits,” will now be included in the settlement's oversight and protection.
In its order, the Ninth Circuit stated: “When a child legally depends on ODHS for his or her needs to be met, ODHS’s duties under the Fourteenth Amendment do not depend on whether the child is housed with a foster parent or a biological parent with no legal rights, as the power of ODHS over the child’s liberty is identical in both cases.”
The Ninth Circuit's decision ensures comprehensive oversight for approximately 10-15% of children and youth in Oregon’s foster care system who the state argued should be excluded from the settlement's protections. Ten children on ODHS’ radar, including several not in physical custody, died in the first three months of 2025, triggering state investigations.
The lawsuit was filed in 2019 on behalf of 10 named clients by Disability Rights Oregon, A Better Childhood, and Davis White Tremaine LLC to protect thousands of traumatized children and youth in the foster care system who have been bounced from institution to institution, and from home to home. Class-action status was granted in 2022.
While parties reached agreement on all other terms in the May 2024 settlement — on the eve of trial after fighting for five long years — they disagreed on how to define "child in care," a term that had been included in the agreement. Plaintiffs argued that the definition should include all children in ODHS' legal custody, regardless of their physical placement, while the state maintained it should only include children in physical custody.
“Every child needs a safe home, and today's decision recognizes that the state cannot simply choose which children it will be held accountable for,” said Jake Cornett, Executive Director and CEO of Disability Rights Oregon. “When the Oregon Department of Human Services takes legal custody of a child, it assumes responsibility for that child's safety and wellbeing — regardless of where that child sleeps at night. This ruling ensures that all children under state custody receive the protections they deserve.”
“The children the state sought to exclude from the settlement’s protections are children whose well-being can be put in danger by a precipitous return to the home from which they have been removed without the necessary supervision and services,” said Marcia Robinson Lowry, Executive Director of A Better Childhood. “Rates of abuse are higher for these children, yet the state sought to avoid accountability for them. The court has said that they may not do that.”
Resources
Opinion and Order Reversing Dismissal (August 12, 2025)
“Child in Care” Reply Brief (February 7, 2025)
“Child in Care” Appellees’ Brief (December 18, 2024)
“Child in Care” Opening Brief (November 18, 2024)
Opinion and Order for Selecting Neutral Expert (June 14, 2024)
Notice to Class Members (June 13, 2024)
Public Settlement Agreement (May 24, 2024)
Opinion and Order on Motion to Certify Order (September 29, 2022)
Opinion and Order for Class Certification (August 17, 2022)
Response to State's Appeal (November 3, 2021)
Opinion and Order on Motion to Dismiss (September 27, 2021)
Motion for Class Certification (December 9, 2019)
Response to the Motion to Dismiss (August 8, 2019)
Motion to Dismiss (July 25, 2019)
Class Action Complaint (April 4, 2019)
About
Disability Rights Oregon upholds the civil rights of people with disabilities to live, work and engage in the community. Serving as Oregon’s federally mandated Protection & Advocacy system since 1977, the nonprofit works to transform systems, policies, and practices to give more people the opportunity to reach their full potential.
A Better Childhood is a national nonprofit advocacy organization that uses the courts to reform dysfunctional child welfare systems around the country.
