Less than a week before trial, the state of Oregon unsuccessfully sought to disqualify U.S. District Judge Ann Aiken from presiding over a class-action case accusing the state of failing to create a safe foster care system.
Attorneys for Gov. Tina Kotek and the state Department of Human Services argued that Aiken has already decided Oregon has significant problems in its child welfare system.
“Defendants bring this motion reluctantly but are doing so because Judge Aiken’s pretrial statements show that she is not impartial,” attorney David B. Markowitz, a special assistant attorney general for the state, wrote in a motion filed late Monday.
On Tuesday, Aiken denied the state’s motion, calling it “legally insufficient” because the state lawyers offered no explanation for why they delayed making the arguments until the eleventh hour. She denied any referral to another judge and also found no basis to recuse herself.
She pointed out in her order that the state filed its motion at 11:14 p.m. on. Monday, less than 12 hours before a pretrial conference was scheduled.
The state contended Aiken rejected terms for a settlement based on her “acquired knowledge and preconceptions” and has made repeated statements in pretrial hearings that she believes Oregon has “significant problems” in its child welfare system, operates a “pipeline to prison,” and “has needed revisions for a long time,” according to the state’s motion.
“Judge Aiken’s opinions are not based on any evidence adduced in this case. As her own statements confirm she has prejudged this case based on personal beliefs and preconceptions gleaned from unidentified ‘stories out there’ and ‘40 years’ of experience as a judge and attorney ‘on the criminal side,’ ” the state’s motion said.
Attorneys for the plaintiffs, representing all foster children across the state, want the court to appoint a federal monitor to oversee the Department of Human Services, arguing the state has been “deliberately indifferent” to children in foster care by failing to address worsening conditions that result in death or incarceration of children.
They contend the system is “overwhelmed, under-resourced and ineffective,” leading to children moved frequently among different homes by caseworkers who aren’t adequately trained. The court has certified a general class of foster children in Oregon, as well as subclasses of children with disabilities, children who identify as a gender or sexual minority and older teens “aging out” of foster care without support.
State lawyers said they intend to call witnesses that will testify about increased recruitment of caseworkers, improved training and recruitment of foster homes, its termination of out-of-state placements, a decreasing number of children entering foster care, an increased emphasis on culturally-appropriate placements, adoption of a new child abuse reporting hotline and additional state and federal funding to support numerous initiatives.
The bench trial before Aiken is set to start in Eugene Monday morning.
-- Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X @maxoregonian, or on LinkedIn.
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