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Arizona Child Welfare Suit Moves Forward; Ninth Circuit Court Affirms Class Certification

Contact: Daniel Kessel, 646-216-3343, dkessel@childrensrights.org

(Phoenix, A.Z.) — The Ninth Circuit Court of Appeals ruled on April 26, 2019 that B.K. v. McKay, a class action targeting Arizona’s struggling child welfare system, should be allowed to move forward. The decision affirmed the lower court’s grant of class certification for all children who are or will be in the custody of the Department of Child Safety (DCS) due to abuse or neglect. (The Ninth Circuit also upheld the lower court’s approval of a non-kinship subclass, but sent its certification of the Medicaid subclass back for further proceedings.)

“We are very pleased that the court’s decision affirms our ability to proceed as a class action,” said Anne Ronan, an attorney at the Arizona Center for Law in the Public Interest. “With this decision, we can now move forward seeking relief for all children in Arizona foster care. The court asked for additional information regarding the Medicaid claim, and we have no doubt we will be able to provide that information.”

In its ruling, the court identified the systemic failures the plaintiffs allege in the complaint and affirmed these failures as a valid basis for class status:

Specifically, the district court identified the following “statewide practices affecting the proposed General Class”: (1) failure to provide timely access to health care, including comprehensive evaluations, timely annual visits, semi-annual preventative dental health care, adequate health assessments, and immunizations; (2) failure to coordinate physical and dental care service delivery; (3) ineffective coordination and monitoring of DCS physical and dental services; (4) overuse of congregate care for children with unmet mental needs; (5) excessive caseworker caseloads; (6) failure to investigate reports of abuse timely; (7) failure to document “safety assessments”; (8) failure to close investigations timely; and (9) investigation delays.

The court also noted elsewhere the plaintiffs’ allegation that DCS fails to meet the behavioral and mental health needs of children in state custody.

The case, B.K. v. McKay, was filed in February 2015 and asserts that the state should be held accountable for these failures. Defendants include Gregory McKay, Director of DCS, and Jami Snyder, 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 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.

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