Foster-care suit legal bills cost DCS $7M

No end in sight as pricey 5-year battle continues

A five-year legal battle over Arizona’s foster-care system has cost taxpayers more than $7 million, public records show.

The spending is likely to continue: State child-welfare officials have turned to the U.S. Supreme Court in their bid to nullify the lawsuit’s classaction status. They have hired former U.S. Solicitor General Paul Clement to make their case before the high court, at a cost of $300,000.

Meanwhile, attorneys at the local level are preparing for trial, possibly later this year.

Class-action status in dispute

The lawsuit, Tinsley v. Faust, seeks sweeping improvements to the state’s foster-care system. It alleges that foster children suffer from a chronic lack of resources to tend to their medical, physical and emotional needs.

In their initial filing, the plaintiffs said Arizona’s foster-care system “shocks the conscience,” as they detailed numerous instances of children who were deprived of services, subjected to lengthy waits for help and suffered as a result.

Since then, the case has been accepted as a class-action matter, meaning if it is successful, it would apply to all children in the foster system, as well as future children. There current

ly are 13,331 children in the system, according to Department of Child Safety statistics.

State officials are contesting the class-action designation, which in part explains why the litigation is now entering its sixth year.

U.S. District Court Judge Roslyn Silver ruled the case a class-action suit, a decision that was upheld last April by the Ninth Circuit Court of Appeals. In December, the state asked the U.S. Supreme Court to review the decision; the high court has not yet responded.

Star power on defense

Clement’s track record fighting classaction matters justified his hire, state officials said as they sought an exemption from the competitive-bid process for his contract.

Clement served as U.S. solicitor general during President George W. Bush’s second term, and has argued nearly 100 cases before the Supreme Court, including class-action matters.

“Mr. Clement’s knowledge and experience in the area of federalism and separation of powers has been documented by his representation of six cases in front of the U.S. Supreme Court,” DCS wrote.

A key argument the state is making to the Supreme Court is that a class-action ruling would usurp local control of the foster-care system and subject it to federal oversight.

The Arizona Attorney General’s Office approved the hire for a flat fee of $300,000, which will come out of DCS’ budget.

Three groups have filed friend-ofthe-court briefs in support of the state: a coalition of 13 states; the Secretaries Innovation Group, which consists of health-and-human-services administrators from across the country; and Childhelp Inc.

Former DCS Director Greg McKay joined Childhelp late last summer.

Defense costs mount

In addition to Clement, taxpayers are covering legal expenses for the five private law firms that represent DCS as well as AHCCCS, the state’s Medicaid system. AHCCCS is involved because it provides medical, dental and behavioral-health services to foster children.

The law firm of Cohen Dowd Quigley has been paid $2.6 million to represent DCS since the case began, according to records obtained under the Arizona Public Records law.

Other payments through 2019 include:

❚ $856,196 to the Ellman Law Group and its predecessor firm, Ellman Weinzweig, for representing DCS.

❚ $520,215 to Struck Love Bojanski & Acedo for representing AHCCCS.

❚ $368,782 to the Johnston Law Office, also for defending AHCCCS.

❚ $1.9 million to handle the myriad documents required as part of the lawsuit’s discovery process. DCS paid $777,794 to Teris Litigation Services and $505,324 to the law firm of Cosmich Simmons & Brown to organize, redact, produce and store what DCS says is nearly 1.7 million records.

DCS touts progress

DCS and AHCCCS argue the money is well spent.

The suit, they said, is one of a series of class-action lawsuits prompted by Children’s Rights Inc., a national nonprofit that has challenged the fostercare practices of 21 state or county systems. The group has reached settlements in a number of those cases, with Children’s Rights often getting the right to monitor changes to the systems.

DCS argues the case is needless, pointing to foster-care improvements since the case was filed in February 2015.

“We have achieved laudable, nationally recognized success,” DCS Director Mike Faust wrote in response to The Arizona Republic’s request for litigation expenses.

For example, the number of open reports for foster and group-home investigations has dropped to 53 from 354 in July 2016, helped by an increase to 14 investigators from six who were on staff four years ago.

Faust wrote that one of the core charges in the lawsuit — that Arizona is indifferent to the health and safety of foster children— wouldn’t fly with any reasonable person, given the strides DCS has made.

“Yet CRI is doing just that and forcing costly litigation fees,” he wrote.

AHCCCS officials say their attorneys are working at a “fraction” of their standard rates and their fees cover work at both the district and appellate courts.

‘In it for the kids’

Children’s Rights, as well as the Arizona Center for Law in the Public Interest, represent the foster-child class. Their attorneys are working on a contingency basis, meaning they only get paid if they win the case.

“We have no incentive to keep the case going to collect fees,” said Sandy Santana, executive director of the New York-based organization. “We’re in it for the kids, not the fees.”

As for the state’s charge that Children’s Rights is forcing the state into costly legal fees, Santana said the whole matter could have been avoided if Arizona had paid more attention to its foster system.

“They could have fixed this problem a long time ago,” he said. But today, there are still hundreds of children in group homes, problems persist in finding enough foster homes for children, and services often are slow to materialize, he said.

About this report

A continuing grant from the Arizona Community Foundation supports coverage of child-welfare issues at The Arizona Republic/azcentral.