Scope of fos­ter suit is de­bated

Of­fi­cials want stay un­til class-action de­ci­sion

The Arizona Republic - - FRONT PAGE - Mary Jo Pitzl Ari­zona Repub­lic

State child-wel­fare of­fi­cials are ask­ing a judge to hold up fur­ther work in a law­suit over Ari­zona’s fos­ter-care sys­tem un­til a higher court de­cides whether the mat­ter should be a class-action suit.

A stay on fur­ther pro­ceed­ings in the long-run­ning suit would save money and ef­fort, at­tor­neys for the state ar­gued in a mo­tion filed last week with U.S. Dis­trict Judge Roslyn Sil­ver.

Sil­ver is over­see­ing a law­suit filed in 2015 by Chil­dren’s Rights, a New York­based or­ga­ni­za­tion that ad­vo­cates for chil­dren in fos­ter care. The group sued the Depart­ment of Child Safety, as well as the Ari­zona Health Care Cost Con­tain­ment Sys­tem, for mal­treat­ment of kids in fos­ter care. AHCCCS han­dles the med­i­cal, den­tal and be­hav­ioral­health needs of chil­dren in the state’s care.

Class-action sta­tus

In Septem­ber, Sil­ver cer­ti­fied the case as a class action. That means the out­come would ap­ply not just to the hand­ful of chil­dren named in the orig­i­nal fil­ing, but to all chil­dren in fos­ter care now and in the fu­ture. The suit seeks sys­tem re­forms rang­ing from bet­ter prac­tices to keep fam­i­lies to­gether to closing what it calls a “se­vere short­age” of med­i­cal, den­tal and be­hav­ioral­health ser­vices to fos­ter chil­dren.

“The Ninth Cir­cuit’s de­ci­sion squarely im­pacts the scope, size and sub­stance of this lit­i­ga­tion.” Pri­vate at­tor­neys hired by the state to de­fend the case

The state last month won a chance to ap­peal the class-action de­ci­sion to the 9th U.S. Cir­cuit Court of Ap­peals. And be­cause that ap­peal is pend­ing, the state at­tor­neys ar­gue, it makes sense to put a hold on the un­der­ly­ing case un­til it’s clear whether the suit will pro­ceed as a class action or a smaller suit af­fect­ing only the two chil­dren re­main­ing from the 2015 fil­ing.

“The Ninth Cir­cuit’s de­ci­sion squarely im­pacts the scope, size and sub­stance of this lit­i­ga­tion,” wrote the pri­vate at­tor­neys hired by the state to de­fend the case.

For ex­am­ple, if the state’s ap­peal is suc­cess­ful, much work on the un­der­ly­ing case could be moot, they wrote.

The 9th Cir­cuit’s even­tual de­ci­sion will make a dif­fer­ence in how much time and ef­fort is put into in­ter­view­ing ex­pert wit­nesses, work­ing through pre­trial pro­ce­dures and, ul­ti­mately, a trial, they noted.

In addition, a stay on the on­go­ing case would save DCS and AHCCCS money — sums that could be redi­rected to car­ing for chil­dren, the state’s at­tor­neys ar­gued.

The plain­tiffs said they will dis­pute the ar­gu­ments in a re­sponse they ex­pect to file this week.

Stay could push action on case into next year

On Thurs­day, at­tor­ney Anne Ro­nan with the Ari­zona Cen­ter for Law in the Pub­lic In­ter­est noted a stay would fur­ther de­lay a case that has lin­gered for nearly three years al­ready.

Cur­rently, the case is sched­uled for a June pre­trial or­der; a stay could push any sig­nif­i­cant action in the case into next year, she said.

“It’s an­other year’s de­lay,” she said, adding that she and other plain­tiffs con­tend fos­ter-care prob­lems have not abated. The cen­ter is among the at­tor­neys rep­re­sent­ing chil­dren in fos­ter care.

Both sides, how­ever, agree that ar­gu­ments be­fore the 9th Cir­cuit should be ac­cel­er­ated. Cur­rently, the first briefs in the ap­peal are not due un­til mid-March, mean­ing a de­ci­sion on whether the case should re­main a class-action mat­ter might not hap­pen un­til late this year, or even later.

Reach the re­porter at maryjo.pitzl@ari­zona repub­lic.com and fol­low her on Twit­ter @maryj pitzl.

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