Federal Court Rules in Favor of Plaintiff Children in Foster Care Suit; Denies State Agencies’ Request to Dismiss

Not Allowing Kids to Seek Relief for Alleged ‘Egregious…Constitutional Violations’ Would Be ‘Wrong Result’; Federal Court Could ‘Fashion a Remedy’

A federal court yesterday ruled that a class action targeting Arizona’s struggling child welfare system should be allowed to proceed. Defendants had moved to dismiss the complaint on the ground that it would interfere with state-level proceedings.

“If the Court abstained here, the effect would be that Plaintiffs would not be allowed to seek relief in federal court for alleged egregious broad and systemic federal constitutional violations,” the ruling states. “That would be a wrong result because based on the allegations in the complaint, this Court could fashion a remedy that would not impinge upon the decisions made by juvenile courts in specific individual cases.”

Since the complaint was filed in February 2015, numerous documents and news reports have highlighted a child welfare system that remains unable to properly care for the now almost 18,000 children in state custody. The number of backlogged child welfare cases—those with 60 or more days of no documented activity—has risen to 14,946, when the state’s goal was to reduce that number to 1,000 by June 30, 2015. The Department of Child Safety (DCS) has opened additional shelters in office buildings to house children because it does not have enough foster homes. Children still aren’t getting the critical health services they need.

“Over the last year and a half DCS has been revamped, promises have been made to improve the system, but still nothing has changed for kids,” said William Kapell, lead counsel for Children’s Rights. “The bottom line is that the state’s most vulnerable children are still being harmed on a daily basis under DCS’s watch.”

The case, B.K. v. McKay, was filed in February 2015 and asserts that the state should be held accountable for an acute lack of foster homes, and failures to conduct timely investigations into reports of maltreatment in care, to provide children in foster care with needed health services, and to preserve family ties after children are removed from their homes. Defendants include Gregory McKay, Director of DCS; Cara M. Christ, Director of the Department of Health Services (DHS); and Thomas J. Betlach, Director of the Arizona Health Care Cost Containment System (AHCCCS).

The plaintiffs, who filed the suit in the Phoenix Division of the U.S. District Court for the District of Arizona, are being represented by the Arizona Center for Law in the Public Interest, international law firm Perkins Coie LLP and national advocacy organization Children’s Rights. Plaintiffs seek declaratory and injunctive relief for alleged violations of their federal constitutional and statutory rights.