OTLA Trial Lawyer Winter 2022

24 Trial Lawyer • Winter 2022 preserved to focus on therapeutic interventions, health care, enrichment experiences, education and providing a nest egg for decades to come. These children tend to experience better trauma outcomes. Runarsdottir, Eyglo, et al., “The Effects of Gender and Family Wealth on Sexual Abuse of Adolescents,” International Journal of Environmental Research and Public Health, Vol. 16,10 1788. 20 (May 2019 ) , h t t p s : / / d o i . o r g / 10 . 3390 / ijerph16101788. Unfortunately, this was not Kayla’s situation. In the authors’ experience, if the child’s family struggles to provide a stable household, food, clothing, transportation and shelter, and is resistant to supporting ongoing therapeutic interventions, trauma outcomes are typically exacerbated. Settlement funds must be used for necessities immediately. It will be necessary for Kayla to use a substantial portion of her settlement for basic supports during her minority. Plaintiffs’ counsel face the dilemma of utilizing a structured settlement annuity to begin payouts when the child enters college versus maximizing initial distributions for food, clothing, shelter and therapeutic interventions. If trauma comorbidities are unmitigated, the child may be unable to attend post-secondary education or career preparation training. Settlements involving sexually abused children who are likely to experience a disability should include both lump sum payouts to a court approved special needs trust (SNT) and structured settlement periodic payments to the SNT. Choosing protective proceeding In Oregon, a guardian ad litem may be appointed to initially file a complaint; however, in most scenarios, a conservator must be appointed in minor settlements exceeding $25,000 to approve settlement and distribute settlement funds. ORS 126.730; ORS 125.445; e.g., Multnomah County SLR 9.055. If your case is viable and a statute of limitations is not imminent, consider filing with a conservator as plaintiff rather than a guardian ad litem. With the Covid related delays, keep in mind it may take up to eight weeks for the court to sign an order appointing a conservator. Start the appointment process early to enable the conservator to sign the final draft of the release/settlement document in a timely manner. Will a conservator be enough? A conservator can negotiate a settlement, sign releases and hold the funds throughout the child’s minority. If the parents are unable, a guardian may be needed to determine where the child will reside, communicate with schools, and guide health care decisions and treatment. A court appointed guardian may also be advisable if the family’s ability to provide the child the necessities of life are limited or the child is removed from the family home. A trauma-informed nurse case manager and a trauma- informed clinical social worker parenting trainer retained by the guardian may be advisable in the first few years after the abuse is adjudicated. A guardian was not appointed for Kayla as DHS was already her guardian. We immediately retained the services of an experienced, trauma-informed nurse case manager and a trauma-informed licensed clinical social worker (LCSW) parenting trainer/therapist. Our nurse case manager established relationships with a primary care pediatrician, dentist, nutritionist and orthopedist. Kayla came to us in an existing relationship with a gifted family therapist whose work was pivotal for her. Choosing the right fiduciary Who should be appointed? Choices include a parent or other family member, a corporate fiduciary, a private professional fiduciary or an individual with an established relationship with the child. For Kayla, our office was appointed to serve as there were no friends or family members suitable to serve at the time the settlement was approved. Naming your party When drafting the petition to appoint, the vulnerability of the client needs to be taken into consideration. It may be necessary to file under pseudonym to leave the child anonymous for the current and all future filings during their minority. Consideration should be given to whether protecting the details from the public is sufficient. Should the child also be protected from those entitled to notice under ORS 125.060? If a parent has abandoned the child and provides no support, we sometimes petition to waive notice to that parent. For Kayla, documents were redacted, and, after she returned to foster care, notice to the biological parents was waived. Considering needs-based benefits If the child receives Social Security income (SSI), Medicaid, public housing Childhood Trauma Continued from p 23