Illustration by Randy Mishler | The Oregonian/OregonLive

BY HILLARY BORRUD

The Oregonian/OregonLive

A pair of Oregon sisters were 5 and not quite 2 when state workers removed them and three older half-siblings from their Medford home in March 2014. Police were concerned about the children’s lack of food and their parents’ drug use and domestic violence, court records say.

The little girls deserved a say in what happened to them next, and one person was paid by Oregon taxpayers to be their voice: Central Point lawyer Risa Hall.

But when child welfare officials signed off on the girls moving into a home with a convicted sex offender, Hall raised no objection, according to a lawsuit filed on their behalf. An April 2014 document in the girls’ file called attention to the danger that man, an adult relative, posed to the children.

Hall should have known about the danger and argued against the move, which happened that May, the lawsuit says.

Instead, it says, the sisters endured months of physical and sexual abuse by the sex offender before a judge removed them from the home at the end of July 2014. By then, Hall had been paid to represent the girls for more than four months.

But she had never met or even talked to them, the lawsuit alleges.

An Oregon State Bar rule requires lawyers to communicate with their clients, even if they are young children. During hearings on foster care and adoptions, government lawyers argue for what child welfare workers say is in a child’s best interest. Children also are assigned attorneys, and those lawyers are supposed to stand up for what the child wants, not what the lawyer thinks is best.

Face-to-face meetings are the only way to fully understand a child’s circumstances and learn what the child truly wants, according to some attorneys who do this type of work. In a system that often prioritizes the interests of adults, lawyers are supposed to provide a voice for the child.

But Oregon’s system can fail the vulnerable children it is meant to help, The Oregonian/OregonLive has found. Some lawyers don’t meet with their clients. Attorneys sometimes rely on staff or other intermediaries, even though child advocates and officials at the state legal contracting agency say that approach shortchanges children.

The state has no system to monitor the quality of legal work for foster children. Instead, it leaves the contractors who do that work to police themselves. Even when complaints arise and officials conclude an absent advocate denied a child appropriate legal help, they rarely mete out consequences.

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Hillary Borrud | The Oregonian/OregonLive

Judge Andrea Janney listens as caseworker Grant Laugsand provides an update on two boys in state care, during a hearing in Klamath County Circuit Court on September 26, 2017.

Over time, the bar’s best practice guidelines have either said lawyers for foster children “should” or “must” meet with the child within 72 hours of appointment and then communicate with the child at least every 90 days. They’re also supposed to talk to the child before every court hearing and when the child faces “a significant change of circumstances.”

Lane Borg took the helm as director of the agency that contracts with lawyers in 2018. He said he is familiar with the sentiment that attorneys don’t need to speak to or visit young children who are clients. And he doesn’t buy it.

“People that started practicing in this area when I started practicing 30-plus years ago, they would be like, ‘What’s the point of driving five hours to go see a baby in foster care somewhere? I’m not going to learn anything that’s going to help me in court. That’s a waste of my time,’” he said.

“No,” Borg countered, “it’s not a waste of your time, it’s what you should be doing in your practice.”

But Oregon does not check how often or even whether lawyers meet with the vulnerable children they represent.

Unless Hall met the Medford sisters she was assigned to represent, she could not serve as their true voice. In recent years, at least nine other lawyers also breached standards requiring them to communicate with child clients and represent their wishes, The Oregonian/OregonLive found. State officials determined most of them went for long stretches without contacting their clients. Others did not dispute the allegation they did the same. In addition to formal complaints, state officials who oversee the more than 300 lawyers who represent roughly 7,600 foster children a year say many more are resolved informally.

Through her lawyer, Hall declined to answer questions. In court filings, she said the abusers, not she, are to blame for any harm. She did not say if she ever met with the sisters. The state still pays Hall to represent other foster children.

Oregon taxpayers spend nearly $12 million a year to provide lawyers for every child in the foster system. Oregon’s approach to calculating pay for foster children’s lawyers tends to reward those who take on high caseloads and give less to those who devote long hours on the cases of fewer children.

In most of Oregon, there are no limits on how many foster children one lawyer can represent, and the state does not track caseloads. The state contracts with law firms or legal nonprofits and pays them primarily based on how many foster children they anticipate they will represent. Typical payments are $830 per child, and a lawyer who visits a child 10 times is paid no more than a lawyer who never does.

Borg acknowledges the system creates a financial incentive for a lawyer to maximize caseloads and do minimal work for each child.

“You incentivize people to take massive amounts of cases,” said Borg, who formerly headed Portland-based Metropolitan Public Defenders, which represented foster children under contract with the state. “We’re not really measuring whether you get any good outcomes or how much work you do. … For 30 years, it’s been cheap and predictable.”

Borg, who became executive director in January, said his Office of Public Defense Services can’t do more to enforce performance standards for foster children’s lawyers because the budget is tight and the lawyers are private contractors, not state employees.

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Beth Nakamura | The Oregonian/OregonLive

Schuyler Davis of Springfield, who entered the foster system at age 7, said he only realized about five years later that a lawyer or lawyers had been representing him in court. Davis says the lawyer he was assigned then, Ilisa Rooke-Ley, listened to him and made a big difference in his life.

‘LISTENING IS IMPORTANT’

Experts who drafted the Oregon State Bar best practices for children’s lawyers stressed the importance of personal interactions. The state agency that provides attorneys for foster children has adopted those practices as performance standards.

“Establishing and maintaining a relationship with the child client is the foundation of representation,” the bar’s task force wrote in 2014. “It is often more difficult to develop a relationship and trust with a child client than with an adult. … The child’s needs and interests, not the adults’ or professionals’ interests, must be the center of all advocacy.”

Young children can reasonably express preferences about where they live, even when they are too young to put them into words, an expert panel assembled by the Oregon bar asserted.

Face-to-face meetings with grade schoolers are an opportunity for lawyers to explain the status of the case in an age-appropriate manner and learn what outcomes the child wants. A lawyer who visits a toddler should ask the caregiver questions such as “Where does the child sleep? Where do they spend their time?” Borg said. It sends a signal that the child has his or her own legal advocate and can reveal what a child likes or fears.

“When a lawyer can discern the child client’s preference … the lawyer must advocate for that preference,” the bar’s experts wrote.

The stakes for children and families are incredibly high. Losing a child, a parent or a sibling or being placed in an uncaring or unsafe foster home can do lifelong emotional damage. An emotionally secure, loving adoptive family can put a child on a life-saving, life-affirming path.

Young adults who spent time in the child welfare system testify to the importance of having a good lawyer. Schuyler Davis of Springfield says he “grew up in the foster care system from 7 to 21.” Now 24, he works security at concerts and volunteers for various causes, including an organization he started to raise awareness of children in state care called Project Foster Kids USA.

Davis said he didn’t realize until he got a new attorney at age 12 that another lawyer or lawyers had represented him in court during his previous five years in foster care. His new lawyer, Ilisa Rooke-Ley, “asked what I wanted,” Davis said. When Davis told Rooke-Ley that he needed help to cope with anger, she got him into a treatment program.

“What helped me to be as successful as I am today is being able to get that help that I needed,” said Davis. “Her listening to what I wanted was especially important to me. … It wasn’t common, especially with (the Department of Human Services).”

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Beth Nakamura | The Oregonian/OregonLive

Schuyler Davis, who grew up in Oregon's foster care system, speaks about the importance of having a lawyer who listened to him and advocated for his needs.

A decade ago, Washington County Judge Jim Fun started asking children’s lawyers during court hearings when they last met with their clients. A new federal law required judges to consult with children in an age-appropriate manner, he said, so he checked to make sure the lawyer was actually serving as a conduit to the child.

“A child has just as much right as any adult to be heard in court, and the only way that that can be accomplished is for counsel to have an opportunity to see the child,” Fun said.

Having a lawyer know the child’s circumstances first-hand isn’t a nicety, Amy Miller, acting deputy director at the agency that oversees foster children’s legal services, advised one child’s lawyer. “Attorneys who represent young children play a critical role in child safety,” she wrote.

But there have been questions about the failure of lawyers to meet performance standards in Klamath, Jackson, Baker, Clatsop, Lincoln and Washington counties during the last five years, The Oregonian/OregonLive found.

FAILURES SPAN OREGON

Oregon’s only system for enforcing foster children’s rights to timely, well-informed legal representation is for someone to complain to the state Office of Public Defense Services or the Oregon State Bar. Not surprisingly, toddlers, grade-schoolers and teens who depend on state-paid lawyers almost never file complaints.

People have filed 14 complaints with the state defense office over the past five years regarding the quality of legal representation for foster children in Oregon, records show. One was filed by a minor.

State law allows the Office of Public Defense Services to keep those complaints confidential. The agency declined to release the minor’s complaint about a Washington County attorney, and it is not clear what the client was unhappy about. The office heavily redacted most of the complaints it did release.

Most of those complaints said lawyers weren’t meeting or communicating with children they represented. Several were said to have failed to connect with their child clients at all. One, Baker County lawyer Ted Martin, told Oregon juvenile court program director Leola McKenzie he wasn’t required to visit clients, state officials found.

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Office of Public Defense Services

A redacted copy of a 2015 complaint about a lawyer in Jackson County lists concerns raised by a foster mother caring for two children, one with significant medical needs, whose lawyer had not visited them. The state released this and other complaints in response to a public records request.

In December 2015, a foster mother in Jackson County complained that attorney Vance Waliser never met with the two children in her care, including one with “severe medical needs.” The woman said she sent Waliser more than 100 emails and left numerous voicemails, including a request that Waliser advocate for more help for the high-needs child. When Miller investigated, Waliser confirmed that he never met these clients, Miller’s notes say.

But the state organization that issues contracts to groups of lawyers imposed no consequences on Waliser, who is a member of the same for-profit legal consortium as Hall. Miller noted that she told Waliser about the performance standards for children’s lawyers and the requirement to independently investigate the circumstances of each client. She also authorized funds for him to travel to visit his clients, then marked the complaint “resolved.” Waliser did not respond to requests for comment.

Waliser and Hall are among five co-owners of the Jackson Juvenile Consortium, state records show. The state continues to pay the consortium $1.5 million a year to represent children and low-income adults.

Eastern Oregon foster parent Mary Collard says no one has more at stake in a family court decision than the foster child, so their lawyers’ advocacy is essential. She told the state that for roughly five months, Ontario lawyer Renee Denison hadn’t visited her foster son. Collard said Denison missed court hearings and citizen reviews for the boy and his siblings, whom Denison was also assigned to represent.

“It was so evident that everyone else had an attorney there EXCEPT the very most important ones!” Collard wrote. “I don't understand how legally, these proceedings can go on without him being represented. Huge decisions are being made for this child's future.”

Questioned by Miller, Denison did not dispute that she failed to visit the boy and missed events in his case. But she blamed some problems on the district attorney’s office and the state child welfare program. Denison withdrew from representing all three siblings, Miller said, but continues to represent other foster children. Denison did not respond to requests for comment.

In 2013, leaders from Washington County’s Court Appointed Special Advocates program shared a lengthy list of concerns with the state about Hillsboro law firm Karpstein & Verhulst, including that siblings represented off-and-on by a lawyer for six years didn’t know who he was. They said the lawyer “had little knowledge of the case other than parroting the DHS or (advocates) report,” the advocates wrote. A 2015 state review of legal contractors in the county noted ongoing concerns about the firm’s reliance on staff to visit children. As that review was underway, Nathan Law and Jacob Griffith took over the firm from Gregory Karpstein, state business filings show. Law told The Oregonian/OregonLive that the firm no longer relies solely on staff to visit children, and attorneys are the primary contact for clients.

Frederick Carman, one of six attorneys at the firm, also vouched for the quality of legal representation. “I stand on my 42 years as an attorney in private practice,” Carman wrote. “It is a fact of life as a practicing lawyer that there will be the occasional unhappy client.”

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Courtesy of the family

Klamath Falls lawyer Richard Garbutt represented Laila Sloan, shown just before she turned 4. Garbutt never visited Laila during the two years after Oregon child welfare workers sent Laila to live with her aunt and uncle in Kentucky, but he continued to act as her voice in court.

Throughout most of 2017, 4-year-old Laila Sloan from Southern Oregon faced being taken from the Kentucky aunt and uncle she calls mommy and daddy to be adopted by an Oregon couple she’d never met.

Laila’s Klamath Falls lawyer Richard Garbutt, who was paid $280,000 in his role providing and overseeing help to vulnerable clients, did not visit the preschooler during a two-year-period after Oregon child welfare workers sent Laila to be raised by the aunt and uncle. The state has a fund to cover costs of significant travel within Oregon and to other states.

Yet Garbutt spoke on Laila’s behalf as the child welfare system decided her fate, strongly supporting Oregon officials’ plan to sever her from the Kentucky couple so she could be reunited with a younger brother she’d never met and adopted by his Klamath Falls foster parents.

The aunt and uncle, whom Kentucky officials eventually granted the right to adopt Laila, filed a complaint with the Oregon State Bar. They said Garbutt failed to meet with Laila, showed extreme bias against people from Kentucky and should have gotten Laila a different lawyer because he had a conflict of interest due to also representing Laila’s brothers.

The bar dismissed the complaint, citing insufficient evidence. The judge in Klamath Falls “is in a much better position than the bar to determine whether Mr. Garbutt is mistaken in concluding that he has no conflict of interest,” Daniel Atkinson, a lawyer at the bar, wrote. Atkinson didn’t address the fact Garbutt failed to meet with Laila.

Kateri Walsh, a spokeswoman for the bar, explained that sending other employees visit and talk with child clients is allowed. Laila’s aunt said Garbutt had a staffer in his office call her to check on Laila about twice a year. Garbutt says he also called to check in a couple times.

Garbutt has received accolades for his legal work. Last year, the Oregon Criminal Defense Lawyers Association honored him with its juvenile law advocacy award. Miller, from the agency that oversees foster children’s lawyers, wrote Garbutt’s citation and pointed to his nonprofit’s strategy of employing caseworkers to help parents seeking to be reunited with their children. She also cited Garbutt’s idea to open a visitation center, which has since closed, where young children in the state’s care could have bonding time with their biological parents.

Garbutt’s high earnings for legal work suggest he carries a large caseload. But during a fall interview, he wouldn’t disclose the number of cases he handles and his state contract proposal said he’d handle a caseload of 80. He had previously told The Oregonian/OregonLive his caseload was as high as 180 children.

A CONTROVERSIAL PRACTICE

Garbutt, who relies on staffers to visit child clients and report back to him, said attorneys who represent fewer children than he does have the luxury of visiting clients. “If you have a low caseload, you can do that,” Garbutt said. He said he, however, is not a “touchy feely guy” and would not go out to a foster home in the evening “just to talk to a 2-year-old.”

That’s the design at Klamath Defender Services, the nonprofit that Garbutt co-founded 33 years ago to represent indigent clients in Klamath and Lake counties. He relies on in-house caseworkers to meet with children and parents every 60 days, then brief him and other lawyers.

“You can hire two (case managers) for the price of one lawyer,” Garbutt said. That allows the nonprofit to take on more cases.

Miller confirmed that while relying on staffers has been controversial, her agency allows it.

“The (Oregon bar) rules of professional conduct require communication” with child clients, Miller said. However, the state allows lawyers “to use other resources to fulfill their contractual and ethical obligations,” she said.

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Hillary Borrud | The Oregonian/OregonLive

Lawyer Richard Garbutt, right, appeared in Klamath County Circuit Court on behalf of his clients, two boys in foster care, on September 26, 2017. Attorney Bonnie Lam, left, represented the boys' incarcerated father. Garbutt founded the Klamath Falls legal consortium that contracts with the state to represent local children in the foster system.

A review team that included defense lawyers and a judge criticized a different firm for substituting staff visits for lawyer contact with foster children in Washington County in 2015. “Reports indicate that the firm’s reliance on staff contact with clients makes the lawyers less effective during court hearings, and there is very little advocacy on clients’ behalf outside of court hearings.”

During a home visit, a lawyer gains knowledge and context to effectively advocate for the child in court, Borg said, such as picking up on inconsistencies with another party’s account. “When you’re talking about an infant or toddler, you are the only embodiment of that person in the courtroom.”

Relying on staffers to contact children face-to-face frustrates some court-appointed children’s advocates. Borg and Miller didn’t cite any benefits to clients.

In 2013, Tim Hennessy and Lynn Travis, leaders of Washington and Multnomah counties’ Court Appointed Special Advocates program, complained to state officials that attorneys had provided substandard legal representation to 14 children or sibling groups. Much of that stemmed from the fact that staffers, not attorneys, met with the children and their foster parents, they wrote.

Travis, who is now a training consultant, said lawyers’ face-to-face check-ins serve two purposes: ensuring a child client’s safety and keeping the child sufficiently informed to make decisions. A well-trained staffer can handle safety check-ins “but the other piece about transmitting information about what the judge is going to decide, what their position is going to be, that really needs to be the lawyer,” Travis said.

NO QUALITY ASSURANCE

State officials acknowledge they don’t know how many state-paid lawyers for foster children make little or no effort to learn and express their wishes. The independent office that oversees the contracts makes no systematic effort to check, Borg said.

Various entities have noted over the past two decades that many children receive poor representation. A state bar panel wrote in 2000 that foster children faced an "unreasonable likelihood of receiving poor representation." Five years later, a state auditor survey found "general agreement within the legal community" that the quality of legal services provided to foster children is often inadequate. The situation was found to persist in 2015, according to a task force created by the Legislature.

During the past four years, just one law group lost its state contract for poor performance representing foster children, Miller said: Portland law firm Brindle McCaslin & Lee. State officials cited inadequate training and supervision of junior attorneys, as well as high caseloads. The firm’s partners have since parted ways. Ted Brindle, partner at the retooled firm, did not respond to a request for comment.

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Office of Public Defense Services

In November 2013, Oregon's legal contracting agency’s general counsel Paul Levy investigated a complaint that a lawyer from Sutherlin hadn't consulted his client. The state ultimately barred the lawyer from taking any new foster child cases.

The state doesn’t track how many individual lawyers have been told they can’t take new foster child cases. Miller said several have been told this in recent years.

Sutherlin lawyer Mark Hendershott was one. In November 2013, another lawyer complained to the state legal agency’s general counsel Paul Levy that Hendershott hadn’t met with a foster child client.

After establishing that was true, Levy barred Hendershott from representing any more children at state expense. Levy explained in a letter to Hendershott that he took actions in court “adverse to your client’s relationship with her father, and that you did so without determining whether she wished for you to take such actions. In response to my inquiry, you confirmed that you took the action without having met with or had any prior contact with your client. You also confirmed that … you did no preparation or investigation of her circumstances and wishes other than reading the discovery that you received prior to the hearing. Most significantly, you explained your conduct by writing, ‘I did not and do not believe (this client) has sufficient maturity to provide meaningful directions to a lawyer on issues such as this.’”

Hendershott declined to comment.

Last year, someone with the CASA program, whose volunteers advocate for individual foster children, complained that St. Helens lawyer Alan Biedermann had not met with a foster child for several months before an important hearing. Biedermann told The Oregonian/OregonLive that although it had been a few months since he met face-to-face with the boy, he read through a “voluminous” amount of evidence, attended a citizen’s review of the case and was in regular contact with the foster parents and caseworker leading up to the hearing.

Rather than check his performance herself, Miller allowed a colleague of Biedermann’s to do so. She told the advocate to talk to the administrator at the contract firm Biedermann worked for. She said state contracts say those administrators must make sure attorneys meet contract terms. On the Biedermann complaint, Miller marked “no action taken.”

-- Hillary Borrud

hborrud@oregonian.com

503-294-4034; @hborrud