San Bernardino County can't escape lawsuit over foster care system deemed 'too broken to fix'

(CN) — A class action seeking to drastically reform San Bernardino County’s beleaguered foster care system, which was deemed “too broken to fix” by a civil grand jury, cleared its first legal hurdle Tuesday after a federal judge denied the county’s motion to dismiss the lawsuit.

The plaintiffs, children in foster care who brought the complaint in May 2023 on behalf of more than 5,800 children who are in — or are likely to end up in — San Bernardino’s foster care system, say that the Department of Child and Family Services, or CFS, “engages in numerous policies and/or practices that violate the rights of foster children in San Bernardino County and expose them to a severe risk of future harm.”

The suit cited the damning 2022 report by the civil grand jury, an independent watchdog agency, which said: “The revelation that there are significant amounts of substantiated sexual abuse and physical abuse cases is eye-opening,” in part because case workers are overloaded, with 70 to 90 cases per worker — far more than the recommended workload of 12 to 15 children — and partly because the department failed to adequately vet or monitor foster homes.

“Former caseworkers have even reported that CFS has placed foster children with known sexual predators,” the plaintiffs say in their complaint.

The grand jury concluded its report by stating that “the bureaucracy that permeates the San Bernardino County CFS is so extensive, complicated, secretive, and inefficient that the [grand jury] strongly recommends CFS be abolished, and a new system be created to help raise and parent foster children in the county.”

San Bernardino County filed a motion to dismiss the complaint for a variety of reasons, arguing that the plaintiffs lacked standing and that the constitution doesn’t protect the rights the plaintiffs claim were harmed. But U.S. District Judge Maame Ewusi-Mensah Frimpong wrote in her ruling that the county had “mischaracterize[d] the rights Plaintiffs are actually claiming,” and cited a Fifth Circuit ruling which said, “it is clear that foster children are, at minimum, entitled to protection from physical abuse and violations of bodily integrity.”

“While the Fifth Circuit held that children do not have a right to be free from ‘any and all psychological harm,’ or to ‘receive optimal treatment and services,’ Plaintiffs do not claim such rights,” Frimpong wrote. “The Court does not find it necessary at this stage to determine the existence of every specific right alleged, given that it finds Plaintiffs to have adequately pleaded the existence of at least one substantive due process right that they allege to be violated to support this cause of action.”

Frimpong did agree to dismiss the San Bernardino County Board of Supervisors and Child and Family Services Director Jeany Zepeda as defendants in the case, finding that claims of “any actual awareness or knowledge of the deficiencies alleged of the CFS” are “mere speculation.” Likewise, the Biden appointee dismissed California Governor Newsom as a defendant, writing that the plaintiffs had “failed to make specific allegations against the Governor that tie him to their claims.”

San Bernardino County and the California Department of Social Services remain as defendants.

Plaintiffs’ attorney Marcia Lowery praised the ruling.

“There have been serious problems in San Bernardino for a very long time,” she said in a phone interview. “I don’t know why. They’ve been largely unreported. The problem in foster care, the harms inflicted on children usually aren’t visible. And the systems often operate very, very poorly.”

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