For years, attorneys who have successfully sued the state for millions of dollars for failing to protect children under its watch have been disheartened by the efforts of neglectful parents to collect proceeds of wrongful death lawsuits.

Often, the parents walk away with nothing. But occasionally, they prevail.

Some attorneys say they want that to change: After a child dies, money from wrongful death lawsuits could go to other surviving relatives, such as siblings who have grown up in the same troubled circumstances and need the financial boost, they say.

State Sen. Sara Gelser, D-Corvallis, also wants a change. This week, Gelser introduced a bill that would make it much tougher for parents who lost custody for neglecting or abandoning their children from getting any money from lawsuits that show the Oregon Department of Human Services failed to protect their children. State Rep. Duane Stark, R-Grants Pass, has signed on the bill as co-sponsor.

Senate Bill 474 would change the threshold for barring alleged neglectful parents from payouts: A judge would need to find that parents had neglected or abandoned their children for only one year instead of 10 years, as state law currently requires. If children are less than 10 years old when they die, current law requires that parents neglected or abandoned those child for their entire lives.

The judge also could make this finding based on a lower burden of proof: a “preponderance of the evidence” (i.e. more likely than not) rather than the current standard of “clear and convincing evidence” (i.e. substantially more likely than not).

“The reason why it is important is really simple: Parents who have severely abused and neglected or abandoned their children should not benefit financially from the death of that child,” Gelser said. “There should be no award for failing your child.”

Gelser was inspired to champion the bill after being contacted by Portland attorney Erin Olson, who noted that the state this November agreed to pay $260,000 to the parents of Gloria Joya. The 15-year-old Albany girl died of untreated gastrointestinal problems while in state custody in 2016.

According to a wrongful death lawsuit and the Department of Human Services’ own investigation into Joya’s death, the child welfare agency took custody of the teen after a long history of concerns about her well-being.

The girl missed an unusual amount school and suffered ongoing problems with untreated lice, her mother repeatedly used methamphetamine while living with her in a shelter and her parents fought and threw items in front of her and her siblings before the couple split, according to investigators. Joya also said she’d been choked, according to one report.

But the existing law that prevents abusive parents from profiting from their children’s deaths didn’t apply because neither of Joya’s parents had been convicted of felony abuse against their daughter and they didn’t directly cause her death.

While Gelser says she doesn’t know enough about the father to comment, she said she believes the girl’s mother caused her daughter much grief. Gelser said the mother shouldn’t receive a financial windfall because of her death.

“Her chronic neglect of her children set in motion events that caused Gloria great suffering over the course of her lifetime,” Gelser said.

Olson, who represented the interests of Joya’s 12-year-old sister, urged a judge to prevent the parents from getting any money based on allegations that they failed to fulfill their parental duties. Olson noted repeated neglect by Joya’s mother and failure of her father to be a meaningful part of her life for years.

But with the help of lawyers, Joya’s mother, Magan McDermott, and Joya’s father, Jerry Joya, mounted a vigorous case that under the current law, the parents couldn’t be cut off from the money. McDermott denied she deserted or neglected her daughter for the 10-year period leading up to the teen’s death, and Jerry Joya’s lawyers said severe mental illness prevented him from intentionally abandoning or neglecting his daughter.

The current “clear and convincing” standard made those assertions tougher to dispute.

Olson ultimately agreed in court papers that she faced a steep uphill battle to exclude them both from the money.

The case settled for $1.25 million. After attorney fees and other costs, $780,000 was left for Gloria Joya’s heirs. Her parents each got $130,000, just like her four surviving siblings did.

While many parents may have a legitimate claim against the Department of Human Services after their children die in state custody, the current law makes it too difficult to keep truly absentee parents from receiving a financial windfall because of their children’s deaths, said Portland attorney Josh Lamborn.

It’s not right for people to benefit from their children’s deaths when they barely participated in their life, especially after they already cost the state so much in Department of Human Services’ intervention, Lamborn said.

“Really? You’re going to take the money when you’ve put (your kids) through all that?” Lamborn said. “And you’re going to take the money from the state, when look what you’ve already cost the state.”

Lamborn acted as a guardian ad litem for Gloria Joya’s sister.

Lamborn supports Gelser’s bill, including the provision that allows parents to be cut off from benefiting after at least a year of neglecting or abandoning their children. That’s enough time for a judge to determine if parents have truly failed their child or made a genuine effort to mend their broken family, he said.

Gloria Joya was the oldest of McDermott’s five children. Over the years, as McDermott has struggled with methamphetamine addiction and abusive relationships, the 34-year-old has lost custody of them all, court records show.

That includes her youngest, a 5-month-old boy who McDermott is accused of overdosing with methadone in November -- she said in an effort to help him sleep, according to police reports. Investigators believe the boy wasn’t breathing for nearly 14 minutes before medics were able to revive him.

McDermott has been booked in Benton County Jail for more than six weeks and has been indicted on charges that include criminal mistreatment and assault of her baby.

In the months and days leading up to the overdose, McDermott repeatedly emailed Olson, the attorney, asking when her $130,000 settlement check for the death of her oldest child would arrive, according to court records. She referred to the upcoming payout as “great news” and expressed her appreciation.

But Lamborn, the Portland attorney, filed suit in December against McDermott on the behalf of her 5-month-old son, trying to ensure she never sees the money.

The lawsuit seeks $900,000 in damages for the boy and asks a judge to immediately intervene by stopping McDermott from collecting the $130,000 payout from the Department of Human Services until her son’s lawsuit against her has run its course.

McDermott, who initially had a civil lawyer but more recently has been representing herself in the wrongful death settlement case, couldn’t reached for comment through her criminal lawyer.

No efforts are underway to stop Gloria Joya’s father from his $130,000 in settlement money. Rob Harris, an attorney who represents the father’s stake in the settlement, said there’s a “vast difference” between the girl’s mother and father – and the reasons why one should be cut off from the money.

“They shouldn’t be lumped together,” Harris said.

-- Aimee Green

agreen@oregonian.com

o_aimee

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