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

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.