BRAAM v. STATE OF WASHINGTON
FINAL SETTLEMENT
I.

INTRODUCTION AND GENERAL AGREEMENTS
1. This Settlement Agreement is entered into in recognition of the following:
Plaintiffs have filed a lawsuit in the matter of Braam v. State of Washington.
The parties seek to resolve the issues and claims set forth in the complaint by the
execution of this Agreement. The parties enter into this Agreement with the
recognition that both parties and their counsel have committed to enter into specific,
measurable and enforceable agreements with the goal of improving the conditions
and treatment of children in the custody of the Division of Children and Family
Services (“DCFS”) of the State of Washington’s Department of Social and Health
Services (the “Department”), as to the conditions and treatment of children in the
Plaintiff class.
Therefore, the parties agree as follows:
2. The parties agree that the Department’s Kids Come First Phase II (KCF II) is the State’s
comprehensive plan to improve child welfare practice, including the six general areas that
are the subject of the complaint filed by the Plaintiffs. The Department agrees to improve
the treatment and condition of children in the Plaintiff class by making specific,
measurable and enforceable commitments as set forth herein. The Department further
agrees to modify KCF II to include the Goals, Outcomes, Benchmarks and Action Steps
identified in this Agreement within 30 days of the signing of the Agreement and to make
additional modifications to the KCF II in accordance with Section III.5.g of this
Agreement. The parties acknowledge that nothing in this Agreement constitutes
Plaintiffs’ endorsement of the entire KCF II Plan, and also that only the sections of
KCF II that are included in this Agreement are subject to this Agreement’s enforcement
provisions under Section V, herein.
3. The parties agree to create an independent Panel of experts from different disciplines
with authority to establish Professional Standards, Outcomes, Benchmarks and Action
Steps to improve the treatment of and conditions for children in the custody of DCFS and
to monitor the Department’s performance under this Agreement. The parties agree that
the Panel is being created to assist the parties in achieving the goals of this Settlement as
described herein, but not to supplant the day-to-day management and leadership
responsibilities and authority of the Department.
4. The parties agree that additional financial resources will be necessary to comply with
some of the provisions of these agreements. The parties agree to make all reasonable
efforts to obtain funding for implementation, including but not limited to, the
Department’s obligation to prepare line item budget requests and support and advocate
for sufficient appropriations.

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 5. The values of shared decision-making and information sharing between public and
private partners in the child welfare system are reflected throughout the KCF II. This
Agreement shall be interpreted consistent with those values.

II.

DEFINITIONS
1. “Action Steps” are actions that the Department will undertake to reach outcomes and
benchmarks in the six general areas that are the subject of this Agreement.
2.

“Benchmark” is a measure for evaluating compliance with specific action steps
identified in this Agreement or required by the Oversight Panel as set forth in Section III
of this Agreement, to be implemented or completed by specific dates or within specific
time periods in order to achieve identified Outcomes.

3. A child “in the custody of the Division of Child and Family Services (DCFS)” means a
child whose custody has been placed in the Department of Social and Health Services,
DCFS, by court order in a dependency or termination action under RCW 13.34 or by
voluntary placement agreement between DCFS and the child’s parent or guardian. A
child “in the custody of DCFS” includes a child in DCFS custody placed with an
unlicensed relative.
4. “Department” means the State of Washington Department of Social and Health Services.
5. “Juvenile court” means the Juvenile Division of Washington State Superior Court,
presiding over a dependency proceeding pursuant to RCW 13.34.
6. “Children’s mental health” includes inpatient and outpatient services to meet the
emotional and behavioral needs of children, including screening, assessment, diagnosis,
and treatment by social workers and mental health professionals.
7. “Outcome” means a specific and measurable result based on Professional Standards that
(a) is expected to follow from the completion of certain action steps set forth in KCF II in
accordance with this Agreement, and (b) is a step toward achieving one or more of the
goals identified in this Agreement.
8. “Professional Standard” means a standard of practice for child welfare agencies that
establishes clear expectations for the treatment of children in the foster care system.
“Professional Standards” related to the areas in this Agreement will be established by the
Oversight Panel after consideration of federal and state law and taking into account
recommended standards of national organizations (e.g., CWLA, COA and the AAP) that
have set standards related to the care and treatment of children in the public child welfare
system.
9. “Placement” means any home or facility, whether public or private, in which the child is
placed by DCFS while in the custody of DCFS regardless of the length of time the child
remains in that home or facility. Respite care and short-term interruptions such as
hospital stays shall not be included. Placement means any home and/or facility the State

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 is mandated to include under its reporting responsibilities pursuant to 42 U.S.C. §679, 45
C.F.R. 1355.407, Appendices A & B, and the Child Welfare Policy Manual.
10. “Plaintiff Class” means all children in the custody of DCFS who are now or in the future
will be placed by DCFS in three or more placements and those children in the custody of
DCFS who are at risk of three or more placements.

III.

OVERSIGHT PANEL
1. The parties agree that an independent Oversight Panel (the “Panel”) will be formed which
will have the following general responsibilities:
In collaboration with the Department, and with substantial input from Plaintiffs, and
other stakeholders as necessary, develop outcomes and benchmarks in each of the six
areas listed in Section IV;
In collaboration with the Department, and with substantial input from Plaintiffs, and
other stakeholders as necessary, establish the Professional Standards to be applied in
each of the six areas listed in Section IV;
Monitor compliance and make Findings with respect to the outcomes, benchmarks
and action steps;
Issue semi-annual public reports on the Department’s compliance with the provisions
of this Agreement; and
Provide advice and technical assistance to the Department in working toward the
goals set forth below.
2. The Panel will be composed of five members to be mutually agreed upon by the parties.
The membership of the Panel will include at minimum (1) a former public child welfare
administrator, (2) a child welfare researcher, (3) an expert in children’s mental health,
and two additional members. By August 30, 2004, the parties will exchange
recommendations for members of the Panel. Each party can identify up to seven
candidates. If the parties cannot agree on final Panel composition, within seven days,
they will submit the names to the mediators who, in collaboration with the parties, will
interview candidates, hold a two-hour mediation on Panel selection and if necessary,
select Panel members. In the event that a Panel member can no longer serve on the Panel
during the term of this Agreement, the Panel, in collaboration with the parties, shall select
a replacement.
3. In carrying out all of its general and specific duties, the Panel shall make independent
decisions based on professional judgment and guided by knowledge of effective practice
and an understanding of the public child welfare system in the State of Washington. The
Panel shall also meet and confer with the Department, Plaintiffs, and other stakeholders
as necessary, to carry out its responsibilities.

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 4. The Panel may shorten or extend the time for any of the responsibilities it is required to
perform under this Agreement, however, no extension shall exceed 30 days without the
consent of the parties. The Panel may not extend the term of this Agreement.
5. The Panel will have the following specific duties:
a. Establish Outcomes and Benchmarks: Within one year of being formed, the Panel,
in collaboration with the Department and with substantial input from the Plaintiffs,
and other stakeholders as necessary, will establish outcomes and benchmarks in each
of the six practice areas listed in Section IV, except for the areas of mental health and
adolescent services as described in Section III.5.b, below. The outcomes will be
related to the claims listed by Plaintiffs in Section II, Paragraph 2.3 of the Fifth
Amended Complaint filed in Braam v. State of Washington. The purpose of the
outcomes is to identify specific, required results that will advance the child welfare
system toward a stated goal. The purpose of the benchmarks will be to provide a
measure to enable the Panel to monitor the progress of the Department in meeting the
specific outcome identified. The benchmarks will set interim targets toward the
achievement of the specified outcomes within the timeframes identified in this
Agreement or by the Panel and also will provide annual benchmarks and measurable
expectations for implementation.
b. Establish Certain Outcomes, Benchmarks and Action Steps: Within six months of
being formed, the Panel, in collaboration with the Department and with substantial
input from the Plaintiffs, and other stakeholders as necessary, will establish
Outcomes, Benchmarks and Action Steps required to achieve the identified goals in
the areas of Mental Health Services and Adolescent Services as identified in
Section II, Paragraph 2.3 of the Plaintiff’s Fifth Amended Complaint. These
Outcomes, Benchmarks and Action Steps will be incorporated into the KCF II and
will be enforceable under this Agreement.
c. Establish Professional Standards: Within one year of being formed, the Panel, in
collaboration with the Department and with substantial input from the Plaintiffs, and
other stakeholders as necessary, will establish the Professional Standards that the
parties agree will be the Professional Standards used in any enforcement proceeding
under Section V, herein.
d. Meetings: The Panel will meet a minimum of quarterly, or as it deems necessary, to
fulfill its general and specific responsibilities under this Agreement.
e. Monitor Compliance: The Panel will monitor the Department’s compliance with the
specific Outcomes, Benchmarks and Action Steps identified in this Agreement, or as
part of its implementation, in the six areas listed in Section IV, and incorporated into
the KCF II. If the Panel finds the Department is in compliance with the outcomes and
benchmarks in one of the six areas for two consecutive years, that area will be
removed from active monitoring by the Panel. However, for the duration of the term
of this Agreement, the Plaintiffs or the Panel can renew the monitoring obligation in
such an area, by demonstrating non-compliance.

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 f. Findings and Reports: The Panel will prepare and publish a report to the public and
to the parties every six months on the Department’s progress and including specific
Findings on the Department’s compliance with the provisions of this Agreement. The
Department shall maintain and provide the Panel with sufficient information to
accurately track the Department’s compliance with the Outcomes, Benchmarks and
Action Steps in this Agreement.
g. Modify/Augment Outcomes, Benchmarks, and Action Steps: In order to achieve
the goals of this Agreement, the Panel may modify or augment the Outcomes,
Benchmarks, or Action Steps at the request of the Department or Plaintiffs, or on its
own initiative, in collaboration with the Department, and with substantial input from
the Plaintiffs, and other stakeholders as necessary.
i. Provided: With the exception of the issues of mental health and
adolescents as described in Section II, Paragraph 2.3 of the Plaintiffs’
Fifth Amended Complaint, no modifications will be made to the
Outcomes, Benchmarks or Action Steps set forth in this Agreement or
developed under this Paragraph until 15 months after the effective date of
this Agreement.
ii. After this Agreement has been in effect for 15 months, the Panel has
authority to modify or augment the KCF II provisions setting forth the
Outcomes, Benchmarks and Action Steps set forth in or, developed as a
result of this Agreement in order to achieve the Goals established in
Section IV of this Agreement. Any such revision will be made only after
consultation with the Department and the Plaintiffs, as described herein.
iii. After establishing the Professional Standards, as set forth in Paragraph
5.c, the Panel, in collaboration with the Department and with substantial
input from the Plaintiffs, and other stakeholders as necessary, may modify
the KCF II provisions relating to the six areas listed below, if necessary to
achieve compliance with the Outcomes, Benchmarks and Action Steps
agreed upon by the parties in this Agreement or developed as part of the
implementation of this Agreement.
h. Participate in Enforcement: The Panel will participate in the enforcement of this
Agreement, as set forth in Part V, below.
6. The Panel will comply with the Open Public Meetings Act, the Public Disclosure Act and
all applicable confidentiality statutes and regulations.
7. In order to allow the Panel to carry out its duties, the Department shall reimburse the
Panel for time and expenses spent serving on the Panel. The Department will provide
sufficient resources for the Panel to hire staff, not to be less than one full time staff
person chosen by the Panel.
8. The Panel and its staff shall have access to all data and information necessary to carry out
its duties. If the Panel finds that in order to determine the level of the Department’s
compliance with the Agreement, additional data and information are needed, it and its
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 staff shall have access to paper and electronic data and information (including case files),
DSHS staff, foster parents, foster children, and other individuals with relevant
information.

IV.

GOALS, OUTCOMES, BENCHMARKS AND ACTION STEPS

The parties agree that KCF II includes or will be supplemented with goals, outcomes, benchmarks
and action steps in the six areas described in this section (i.e., Section IV. 1-6). The version of KCF
II that the parties agree will be supplemented is attached as Appendix A, and is incorporated by
reference into this Agreement, where applicable. In subsections 1 through 6 below, the Action Steps
currently in KCF II and which are incorporated into this Agreement, are identified; a parenthetical
after each of the current Action Steps cites the applicable section of KCF II. Where a date is cited,
such date will amend or supplement any date(s) in KCF II; where no date is cited, the date(s) in KCF
II will apply. For those Additional Action Steps where implementation dates have not been specified
herein, they will be developed by the State, with review and approval by the Panel.
1. Placement Stability
A. Goal:
Each child in the custody of the Department shall have a safe and stable placement with a
caregiver capable of meeting the child’s needs.
B. Outcomes and Benchmarks:
To be developed according to the provisions of Section III, Paragraphs 5.a, b, c and g.
C. Action Steps:
Currently included in KCF II –
1. RFP for statewide foster parent recruitment (Section 24.1.1)
2. Require multi-disciplinary case staffings for children in four or more placements
(Section 6.1.1)
3. Implement strategies to increase appropriate matching between children and
caregivers at time of initial placement (Section 6.2.4, beginning in
December 2004 and fully implemented by June 2007)
4. Develop and implement policy to provide emergency respite to licensed foster
care and relative caregivers to prevent disruption (Section 6.1.2(a))
5. Complete implementation plan for 2003 legislation to increase educational
stability of foster children (HB 1058). Complete and implement agreements with
school districts, addressing transportation issues for children transferring schools
upon placement or move between placements (Section 15.1.4)
6. Increase the appropriate use of kinship care (Sections 20.1.1 – 21.1.2)

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 7. Revise and implement policy and procedure to provide for the involvement of
children and parents in assessments, development of case plans and major
decisions (including changes in placement) (Section 13.1.1.)
Additional action steps to be incorporated into KCF II –
8. Develop and implement annual local office and/or regional, plans for the
recruitment and retention of foster homes that specifically assess the need for and
availability of placement for children with special needs, and for respite
(especially for adolescents). Such plans shall specify the recruitment activities
targeted at increasing the number of such homes. The plans shall contain
numerical targets for increases each year in the number of homes in the special
populations of children listed above, beginning in July 2005 until the target
identified in the plans is met.
9. Develop a plan by June 30, 2005 for Panel review and approval to reduce
caseloads to COA standards.
10. Notify child’s representative (attorney/GAL/CASA) prior to placement move,
except in emergencies. When a move has been made based on an emergency, the
child’s representative will be notified on the next business day.
11. A history of the child’s placements will be reported to the Juvenile Court at each
dependency review hearing as part of the child’s Individual Safety and Service
Plan (ISSP).
12. Consistent with the outcomes and benchmarks in Section IV.2, develop and begin
to implement pilot programs in at least 3 sites providing therapeutic foster care
using effective, evidence-based models of care for children with emotional and
behavioral challenges. (By June 2005 develop RFP, award contracts and begin
implementation of pilot projects)
13. Implement strategies to increase appropriate matching between children and
caregivers for children who need to be replaced. (Beginning by December 2006
and fully implemented by June 2008)
14. Develop a plan for Panel review and approval, with input from Plaintiffs, to
provide multidisciplinary and/or case staffings for children in 3 or more
placements. (Plan developed by January 15, 2005)
2. Mental Health
A. Goals:
1. The children in the custody of DCFS shall have an initial physical and mental health
screening within 30 days of entry into care.
2. Plans to meet the special needs of children in the custody of DCFS will be included
in the child’s ISSP.

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 3. Children in the custody of DCFS shall receive timely, accessible, individualized and
appropriate mental health assessments and treatment by qualified mental health
professionals consistent with the child’s best interest.
4. Continuity of treatment providers will be maintained, except when it is not in the best
interest of the child.
B. Outcomes and Benchmarks:
To be developed according to the provisions of Section III, Paragraphs 5.a, b, c and g.
C. Action Steps:
Currently included in KCF II –
1. Improve availability and utilization of regional medical consultants
(Section 16.1.4)
2. Increase utilization of “No Wrong Door” staffings to identify needs for family
and connect to services and resources (Section 16.1.5)
3. In collaboration with community partners, utilizing Pre-Passport and Passport
profiles or any successor model, identify regional services gaps and create
plans to fill gaps through maximizing and developing local resources (Section
17.1.2)
4. Implement newly developed agreements with Regional Support Networks in
each region (Section 17.1.4)
Additional Action Steps to be incorporated into KCF II –
5. Foster children’s mental health needs will be periodically reassessed by
mental health professionals, as indicated in their EPSDT or other relevant
evaluation.
6. The Department will develop and encourage Juvenile Court Judges to use a
checklist for each review which prompts the Court to seek information on
whether or not the physical and mental health and education needs of
dependent children are being met.
Additional Outcomes, Benchmarks and Action steps to achieve this goal will be
developed and added to the KCF II Plan as outlined in Section III, 5.b of this Agreement,
with consideration of the recommendations of the Children’s Mental Health Workgroup,
if appropriate, and including, Outcomes, Benchmarks and Action Steps related to the
Department’s redesigned Pre-Passport and Passport programs.

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 3. Foster Parent Training and Information
A. Goals:
1. Caregivers shall be adequately trained, supported and informed about children for
whom they provide care so that the caregivers are capable of meeting their
responsibilities for providing for the children in their care.
2. The Department shall offer and provide accessible pre-service and in-service training
to all caregivers sufficient to meet the caregiving needs of children in placement.
B. Outcomes and Benchmarks:
To be developed according to the provisions of Section III, Paragraphs 5.a, b, c and g.
C. Action Steps:
Currently included in KCF II –
1. Implement statewide after-hours crisis support line for foster parents and other
caregivers (Section 6.2.1)
2. Develop and implement cross-training between foster parents and staff (Section
22.1.2)
3. Require written notification to licensed foster parents and relative caregivers and
provide support to increase their participation in meetings, staffings and hearings
involving planning for children in their care (Section 22.1.3)
4. Implement RFP for providing statewide crisis support and other immediate
support for licensed foster parents and relative caregivers (Section 23.1.2)
5. Provide training for licensed foster parents and relative caregivers on policy
revisions and engaging families and children (Section 13.1.1)
6. DLR licensors develop and implement annual assessment and development plans
for foster parents, and relative caregivers utilizing feedback and input from DCFS
workers (Section 6.2.6)
7. Develop and implement a policy requiring ongoing training for licensed foster
parents (Section 40.1).
Additional Action Steps to be incorporated into KCF II –
8. Licensed foster parents and relative caregivers shall be provided with the results
and recommendations of all of the Department’s screenings and assessments,
including the Pre-Passport or its successor, for children placed in their home five
days after its completion, unless expressly limited by law or a child’s lawful
assertion of confidentiality. Licensed foster parents and relative caregivers shall
be provided a copy of the child’s passport or its successor at the time of
placement but no later than five days after its completion, unless expressly
limited by law or a child’s lawful assertion of confidentiality.
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 9. Licensed foster parents and relative caregivers will be encouraged and supported
to participate in staffings of pre-passports (or successor) for children placed in
their homes.
10. The Department shall provide appropriate access to respite care for caregivers
requesting and needing this service.
11. The Department shall develop a plan, subject to review and approval of the Panel,
for training of unlicensed caregivers (by June 2006).
4. Unsafe/Inappropriate Placements
A. Goals:
1. All children in DCFS’s custody shall be placed in safe placements.
2. The State will continue to meet or exceed the federal standard for out-of-home care
safety measure.
B. Outcomes and Benchmarks:
To be developed according to the provisions of Section III, Paragraphs 5.a, b, c and g.
C. Action Steps:
Currently included in KCF II –
1. Increase contact between social worker and family, child and caregivers to at
least once every 30 days (Section 11.1.2)
2. Increase compliance with policy requiring workers to visit children in placement
within the first week of out-of-home care (Section 14.1.4, beginning in October
2005 and fully implemented by September 2007)
3. A face-to-face safety assessment with a child suspected to be a victim of child
abuse or neglect while in the Department’s custody shall occur within 24 hours of
the report for emergent cases, and within 72 hours of the report for non-emergent
cases. (Section 1.1.4 and 1.1.5, by September, 2005 for emergent cases, and
September 2006 for non-emergent cases)
Additional Action Steps to be incorporated into KCF II –
4. Children in the custody of the Department will not be placed in:
Institutions not designed to receive foster children, such as adult mental
hospitals or detox facilities where children and adults are commingled
A foster home without specialized training and support to provide for the
safety of children in the home when sexually aggressive or physically
assaultive children reside in the home
DSHS offices, including repeated daily stays at DSHS offices

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 Apartment or motels, unless an appropriate licensed foster family or relative
caregiver is not available and only with administrative approval and a
determination that adequate supervision is provided for the child. This does
not preclude appropriate placement in a licensed or approved independent
living program.
5. Sibling Separation
A. Goal:
1. Placement of siblings together is presumed to be in the children’s best interest, unless
there is a reasonable basis to conclude that the health, safety or welfare of a child is
put in jeopardy by the placement.
2. Frequent and meaningful contact between siblings in foster care who are not placed
together and those who remain at home should occur, unless there is a reasonable
basis to conclude that such visitation is not in the best interest of the children.
B. Outcomes and Benchmarks:
To be developed according to the provisions of Section III, Paragraph 5.a, b, c and g.
C. Action Steps:
Currently included in KCF II –
1. Increase quality and frequency of visits between children and their siblings
(Section 18.1.1)
2. Improve kinship support services (Section 8.2.1)
3. Hire and train relative search staff to support finding relative resources and
supporting Family Team Meetings (Section 8.2.5)
4. Implement case conferences prior to dispositional hearing, as required by 2004
legislation (Section 13.1.7)
5. Develop and implement policies and protocols regarding visitations for children,
parents and siblings (Section 18.1.1)
6. Submit and, if approved, implement Title IV-E Demonstration Waiver to develop
and deliver kinship supports (Section 38.1.3)
Additional Action Steps to be incorporated into KCF II –
7. Pursuant to the plans developed under KCF II, implement strategies to recruit
additional licensed foster care and relative caregivers willing and able to
accommodate sibling groups.

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 6. Services to Adolescents
A. Goal:
1. Improve the quality and accessibility of services to adolescents in the custody of
DCFS consistent with the allegations set forth in Section II, Paragraph 2.3 of the
Plaintiffs’ Fifth Amended Complaint.
2. Improve the educational achievement of adolescents in the custody of DCFS and
better prepare them to live independently.
3. Reduce the number of adolescents on runaway status from foster care.
B. Outcomes and Benchmarks:
To be developed according to the provisions of Section III, Paragraphs 5.a, b, c and g.
C. Action Steps:
Currently included in KCF II –
1. Develop an integrated, re-designed service model for adolescents (Section 19.1.1)
2. Offer support services to foster youth until age 21 (Section 10.1.1)
3. Propose statutory change to extend out-of-home care benefits to children through
age 21 (Section 10.1.1.)
4. Implement multi-disciplinary staffings for youth 6 months before exit (Section
10.1.2)
5. Establish post-guardianship support program (Section 21.1.3)
6. Develop and implement regional resource centers for post-adoption kinship and
post-guardianship families (Section 10.3.3)
7. Establish educational outreach positions to assist children in out-of-home care in
meeting higher education goals (Section 15.1.3)
8. Establish Youth Advisory Group (Section 19.1.7)
9. Offer caregivers training on educational advocacy skills (Section 15.1.5)
10. Develop and implement tutoring and mentoring services, in conjunction with
existing community resources, to improve educational outcomes for adolescents
in out-of-home care (Section 15.1.2).
Additional Action Steps to be incorporated into KCF II –
11. Review systemic data and literature on methods and supports to caregivers to
decrease running away behaviors in adolescents, and develop and implement
strategies to decrease runaway behaviors.
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 Additional Outcomes, Benchmarks and Action Steps to achieve this goal will be
developed and added to the KCF II Plan as outlined in Section III.5.b of this Agreement,
including implementation Outcomes and Benchmarks for an integrated, redesigned
service model for adolescents. As appropriate, Outcomes, Benchmarks and Action Steps
related to DCFS/School Agreements, meeting children’s’ needs in the educational
system, and discharge planning for adolescents in foster care will also be developed.

V.

ENFORCEMENT

The parties agree that this Settlement Agreement is enforceable as follows:
A. General Provisions
1. The parties agree that this Settlement Agreement, including the provisions of KCF II
incorporated herein, and the Outcomes, Benchmarks and Action Steps established or
modified are incorporated into this Agreement and are enforceable by the Plaintiff
class. Prerequisites to and the right to obtain court enforcement of this Agreement
are set forth in this Section V. The parties agree that this Settlement Agreement does
not contemplate enforcement proceedings on behalf of individual children.
2. The first report of the Panel shall be due one year after the Panel is formed but no
later than November 15, 2005. The Panel’s first report will set forth the Panel’s
identification of Outcomes, Benchmarks, Action Steps and Professional Standards, as
well as the Department’s progress in the meeting the Goals of this Settlement as
required pursuant to Section III.5.f, herein.
3. The parties agree that in any enforcement proceeding, there shall be a rebuttable
presumption that the Panel’s factual findings are correct.
4. Upon the consent of both parties, prior to any court enforcement proceeding,
mediation can be utilized; however, either party can reject the use of mediation for
any reason or no reason.
5. Notwithstanding the enforcement provisions described below, if at any time while
this Agreement is in effect, there is reasonable cause to believe that the Plaintiff class
is at immediate and substantial risk of irreparable harm as a result of non-compliance,
the Plaintiffs may petition the court for preliminary or permanent injunctive relief to
enforce this Agreement. Provided, however, if the non-compliance is due to a claim
of lack of funding, enforcement proceedings shall be governed by Section V.B.2
below.
B. Enforcement Provisions
The parties agree that this Agreement provides for three types of enforcement
proceedings, including, enforcement proceedings in which (i) non-compliance is based on
a failure of implementation; (ii) non-compliance is based on a lack of funding; and (iii)
non-compliance involves a combination of (i) and (ii). The following sets forth the
parties’ agreements for each of these conditions:

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 1. Non-Compliance Based on Failure to Implement
i.

If the Panel makes a finding in any of its reports that the Department has
not implemented one or more of the Action Steps set forth above, or that
the Department has failed to reach the annual Benchmarks, the
Department shall, within 30 days of the issuance of the report, submit a
proposed compliance plan.
This compliance plan shall include
timetables, and may include additional or different Action Steps for
achieving compliance with the Outcomes and Benchmarks. Plaintiffs may
comment on the proposed compliance plan, within two weeks of receipt
of the Department’s plan. The Department will have two weeks to
consider the Plaintiffs’ comments and make such revisions as it deems
appropriate. The Panel shall then have 14 days to accept or reject the
plan.

ii.

If the Panel rejects the plan, the Department may submit a revised plan
within 21 days. Plaintiffs may comment on the revised plan within 10
days of receipt of the Department’s revised plan. The Panel shall then
have 14 days to accept or reject the revised plan.

iii.

If the Panel rejects a compliance plan or if the Department fails to submit
a plan within the required time period, the Plaintiffs may seek a court
order to enforce those provisions.

iv.

If the Panel accepts the Department’s proposed compliance plan, the
Department will have 6 months to implement the plan before the Panel
will make a report on compliance. If at the end of six months the Panel
finds that there is a failure to implement the compliance plan and achieve
the Outcomes and Benchmarks, Plaintiffs may seek a court order to
enforce those provisions.

2. Non-Compliance Due to Lack of Funding
i.

At the time that the Department submits a compliance plan or a revised
compliance plan to the Panel as described in Section V.B.1(i) and (ii), it
must identify those Benchmarks or Action Steps which have not been
implemented or achieved or which can not be implemented or achieved
due to lack of funding.

ii.

If the Department identifies lack of funding as the basis for its noncompliance, Plaintiffs may immediately commence an enforcement action
in court on behalf of the Plaintiff class, based on a claim that the
noncompliance results in constitutionally inadequate care to members of
the class. In any such enforcement proceeding, the parties agree that the
“Professional Standards” applicable to the six areas identified in this Part
IV of this Agreement are those standards identified through the process
set forth in Part III 5.c. The parties agree that the court can order
expenditures to enforce constitutional mandates only if the court finds
that non-compliance results in failing to provide constitutionally adequate

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 care to children in the Plaintiff class. Nothing in this paragraph prevents
Plaintiffs from challenging the Defendant’s assertion that lack of funding
is the reason for non-compliance.
3. Non-Compliance Due to Failure to Implement and Lack of Funding
In the event that the Panel finds that non-compliance is the result of both lack of
funding and failure to implement, the Panel can require the Department to develop a
compliance plan as described in Section V.B.1 regarding Non-Compliance Due to
Failure to Implement, while Plaintiffs, if they choose, simultaneously pursue
remedies specified in Section V.B.2.

VI.

CLASS COUNSEL
1. Plaintiffs’ counsel, through the Panel, will have access to systemic data about the
Plaintiff class and information about named Plaintiffs.
2. Within 12 months after the date of this Agreement, Plaintiffs’ counsel will be offered an
opportunity to participate in an established quality service review process of the
Department, to be identified by the Department in collaboration with the Panel, that
gathers information relevant to assessing progress towards achieving the goals of this
Agreement.

VIII. APPROVAL AND TERMINATION OF AGREEMENT
1. This Settlement Agreement shall remain in force for a period of 84 months from the date
hereof unless an enforcement action (including any action before the Panel, mediator or
court) is pending or, the Agreement is terminated earlier by mutual agreement of the
parties. In any event, the lawsuit shall be dismissed and the Agreement terminated when
the Outcomes have been achieved and sustained for a period of two years.
2. The parties agree that the currently assigned Judge may consider, approve or disapprove
this Settlement Agreement and that such action shall have no effect on the pending
recusal motions and Affidavits of Prejudice filed by Defendants.
3. The parties agree that this Agreement will be submitted to the Whatcom County Superior
Court for review and approval pursuant to Civil Rule 23. The parties agree to request
that the Court enter an Order approving the Settlement Agreement, retaining jurisdiction
for enforcement purposes only as set forth in Section V.

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 IX.

ATTORNEYS’ FEES
1. Within 10 days following court approval of this Agreement, Defendants shall cause to be
paid to Plaintiffs’ Counsel the sum of ONE MILLION SIX HUNDRED THOUSAND
DOLLARS AND NO CENTS ($1,600,000.00 ). By August 1, 2005, Defendants shall
cause to be paid to Plaintiffs’ Counsel the sum of ONE HUNDRED THOUSAND
DOLLARS AND NO CENTS ($100,000.00). By August 1, 2006, Defendants shall
cause to be paid to Plaintiffs Counsel the sum of ONE HUNDRED THOUSAND
DOLLARS AND NO CENTS ($100,000.00).
2. The payments pursuant to Section IX.1 are in full and final settlement of any and all
claims that Plaintiffs have or could assert for attorneys’ fees or costs of any kind
regarding services rendered to the Plaintiff class up to and including the date of this
Agreement through July 31, 2006. This provision constitutes a waiver by Plaintiffs’
Counsel for any and all fees or costs they incur in the period between July 31, 2004 and
July 31, 2006.
3. Beginning August 1, 2006, Plaintiffs are entitled to seek an award of reasonable
attorneys’ fees and expenses incurred in an enforcement action under Section V of this
Agreement and Defendants are entitled to oppose such an award.

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 Dated: As of July 31, 2004

ON BEHALF OF PLAINTIFF CLASS:

ON BEHALF OF DEFENDANTS:

__________________________________
John Midgley, WSBA #6511

__________________________________
Dennis J. Braddock

_________________________________
Timothy C. Farris, WSBA #7264

__________________________________
Uma S. Ahluwalia.

_________________________________
William H. Grimm

__________________________________
William L. Williams, WSBA #6474

__________________________________
Casey Trupin, WSBA #29287

__________________________________
William G. Clark, WSBA #9234

__________________________________
Jennie Laird

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