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Ninth Circuit allows lawsuit against DCS to proceed as class-action

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The state Department of Child Safety has to defend how it handles the more than 14,000 children in foster care now and all those who will be there in the future.

In a unanimous ruling Friday, the 9th Circuit Court of Appeals decided that most of the claims against the state should be handled in a class-action lawsuit. That means the agency will face questions on not just how it has handled the care of a handful of children who filed suit but whether its policies endanger others in the system.

Friday’s ruling does not force DCS to do anything – yet. Instead, it sends the case back to U.S. District Court Judge Roslyn Silver who will hear evidence of the agency’s practices.

“It allows us to go forward with the case and prove the claim that the children who are in the foster care system are not receiving the services they need to be successful and they’re not being placed in appropriate living arrangements and they’re not being reunited with their families,” said attorney Anne Ronan of the Arizona Center for Law in the Public Interest. She is part of the legal team suing the state.

And if the challengers win, it could force DCS to not just reform their practices but to hire more caseworkers to ensure that they are not overloaded.

There was no immediate response from DCS.

The lawsuit, first filed in 2015, claims that there is “a severe shortage of mental, behavioral and other health care services.”

It also alleges that DCS has failed to investigate reports that children in foster care have been maltreated. There also are claims of a severe shortage of foster homes and “failure to engage in basic practices for maintaining family relationships.”

The original lawsuit named 10 children as plaintiffs.

But in 2017 Silver agreed to allow the case to continue as a class-action lawsuit, effectively allowing those children and their attorneys to seek relief for not just them but everyone else currently in – and who eventually will come in – to the foster care system.

At a hearing earlier this year, attorneys for the state argued against class-action status, saying that reforms have been made since the original lawsuit was filed.

Attorney Rob Ellman also said that the problems faced by the original 10 plaintiffs do not represent the situations faced by all the children in foster care. And some of the original plaintiffs are no longer in the system.

But appellate Judge Clifford Wallace, writing Friday’s ruling for the three-judge panel, said handling the issue on a class-action basis makes the most sense.

As a threshold matter, Wallace said that B.K., who the court decided was a “representative class member,” had standing to sue. He said she has “serious medical diagnoses” that require prompt and adequate medical care from her custodian. And that is the state.

“She has presented evidence that she had not received adequate medical care or appropriate placements in the past as well as evidence that statewide policies and practices expose her to a risk of similar harms,” Wallace wrote.

More to the point, the judge said that the allegations about the effects of statewide practices are “common questions of law or fact” that can be litigated in a single case rather than each foster child having to file a separate lawsuit.

The key, said Wallace, is those statewide policies and how they affect care for not just B.K. but everyone else.

“B.K. has demonstrated, not merely through allegations but through raw data, expert reports, deposition testimony, and DCS materials, that she is subject to statewide policies and practices that apply equally to every member of the class,” the judge wrote. “By defining her claim based on the risk of harm caused by these policies … B.K. has demonstrated that class members have similar injuries, based on conduct that is not unique to her and caused by the same injurious course of conduct.”

And there’s something else.

Wallace said there are some common practices at issue here, including the excessive use of emergency shelters and group homes, the unnecessary separation of children, and placement of children far from home. Wallace said if the problems facing B.K. and others are caused by state policies, then “a single, indivisible injunction ordering state officials to abate those policies would provide relief to each member of the class.”

Ronan disputed the contention of DCS that things have gotten better for children in the foster care system.

She said there may be fewer investigations that are backlogged. And there are fewer children in the system now than when the lawsuit was filed.

But Ronan said these had nothing to do with the claims in the lawsuit.

“They were about the care the children received when they got into the system,” she said. “We haven’t seen a significant change in that situation at all.”

Ronan said there are still a lot of kids going into congregate care group home settings versus actual foster care. She said there still is a shortage of foster families and there continue to be problems getting behavioral health treatment for the children.

5 comments

  1. If you don’t pay it all along you will pay in the end to clean up what you short changed these children. Kudos , sometimes a law suit is what it takes to wake people up .

  2. Yes know all to we the stories of foster care I was on until I immancipated self my children later on protecting them from racial abuse to my 3 children being raped in foster care to now my grandchildren the system is so broken …I even won three times in court all the while never knowing I was on some child abuse list registry????

  3. Yes I Igree. The system in DCS is a Joke and is because is so hard to fight against it.
    They don’t really focus on child safty. They focus more in making their parents in taking so many classes that they do not even know if parents really need them. I have a concern about my daughter. And they don’t give me any information about it. The case manager has not even visit my daughter’s placement.

  4. Agree Jesus Martinez DCS truly r a joke. A joke that is not even funny no more. Those ******** needs to stop ******* with our children and lives sorry everyone for my language it’s just that I have had it tolerating these people.

  5. It’s obvious to anyone who’s ever had to deal with DCS it’s a poorly ran Department that usually starts at the top. Supervisors cover up while caseworkers make major mistakes instead of making them accountable for their actions. The reason why so many children are in Foster care unnecessary is because caseworkers aren’t being trained, and not being encouraged to study the Procedure Manual to educated themself on DCS Policies and Procedures, there making rules up as they go. Management is not doing their job and hundreds of children lives are being affected. On 08/22/19 in the middle of the nite Program Supv came to remove my grandson from home her excuse was father was visiting to late she had a court order signed by a judge. I told her it doesn’t indicate a time limit in the Procedure Manual she had to go check to see if it was true. Why didn’t she no this before a judge signed a order this is a prime example.

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