Lawsuit: Arizona Foster Kids' Treatment 'Shocks the Conscience'
By Emily Bregel
Arizona's treatment of foster children is so bad it actually puts kids at risk of greater harm, says a federal class-action lawsuit filed Tuesday against the directors of the Arizona Department of Child Safety and the Department of Health Services.
Ten foster children in Pima and Maricopa counties are plaintiffs in the suit, which is packed with details of Arizona children in state custody experiencing a dizzying number of placements, separation from siblings, deterioration of psychological health, and untreated physical and mental health problems.
Phoenix law firm Coppersmith Brockelman and two nonprofit child-advocacy groups filed the suit in U.S. District Court against DCS director Charles Flanagan and DHS director Will Humble. The suit alleges DCS and DHS's pattern of child-welfare practices "shocks the conscience ... and amounts to deliberate indifference to the constitutionally protected rights and liberty and privacy interests" of the plaintiffs.
"The children in this lawsuit represent thousands with similar stories," Kris Jacober, president of the Arizona Association for Foster and Adoptive Parents, said in a news release. "The state can't simply bring them into custody and provide for them on the fly. We are responsible for their well-being."
Officials with DCS and DHS referred requests for comment to the governor's office.
"We are reviewing this filing," Daniel Scarpinato, spokesman for Gov. Doug Ducey's office, said in a prepared statement. "Gov. Ducey takes the safety and well-being of foster care children extremely seriously. They are among the most vulnerable in our state and the governor believes it is imperative that the government protect them."
Advocates: Services not keeping up
The number of children in foster care in Arizona has skyrocketed since 2007, with nearly 17,000 children now in state custody.
"That's a big part of what's driving these problems," Bill Kapell, lead counsel for Children's Rights in New York, said. The nonprofit legal group is among those representing the plaintiffs. "More and more children are being brought into state custody, but the level of services is not increasing in a corresponding way."
The lawsuit, which names as plaintiffs 10 foster children ages 3 to 14, said the agencies failed to address ongoing failures. Among them:
--A severe shortage of physical, mental and behavioral health services for children in care resulted in foster children being denied needed services and increasing their risk of psychological deterioration.
--There was "widespread failure" to conduct timely investigations of maltreatment reports on children in state custody.
--A sustained shortage of foster homes forced children into foster placements far from their families or into group homes and emergency shelters.
The suit also accuses the state of a "widespread failure to engage in basic child welfare practices aimed at maintaining family relationships." That includes placing siblings together, trial reunifications with parents, adequate visitation between children and biological families, and having caseworkers visit parents to work toward reunification.
Evidence-based practices are also lacking at DCS, the suit said. It quotes former Arizona Department of Economic Services director Clarence Carter's admission that DES -- which used to oversee Child Protective Services until DCS was created last year -- collected no data that would allow the agency to evaluate whether particular interventions are effective.
"Arizona officials have long been aware of these deficiencies and harms," the suit says. It cites a 2003 Maricopa County Attorney's Office report detailing deficiencies, including the foster home shortage, a poorly designed child-welfare system and inadequate resources.
Those problems only worsened after deep cuts to state funding for community-based programs working to keep families intact, the lawsuit said. Legislators cut funding for in-home family services from $43 million in fiscal year 2008 to less than $22 million in fiscal year 2012.
Attorneys want guarantees the state will maintain a "minimally adequate capacity" to house and care for children in its custody and to ensure foster children receive the medical and behavioral health care guaranteed by the federal Medicaid Act. They've asked the courts to declare the agencies' actions unconstitutional and unlawful for violating children's rights to be free from harm and their rights to family integrity.
Part of the root problem is lack of funding, "but a big part of it is also the mismanagement of the agency," Kapell said.
Huge savings could be achieved by placing children in lower-cost foster homes instead of congregate care or emergency shelters, which are the least ideal setting for most children, he said.
Timely behavioral health care also brings cost savings down the road -- and reduces harm to children whose psychological health worsens in the face of lengthy delays in treatment and years of instability, he said.
The lawsuit details the plight of 10 children in the state's foster care system. Among them is a 10-year-old girl who has spent more than half her life in foster care. After her third removal from her drug-addicted mother's care, in 2012, she was diagnosed with post-traumatic stress disorder, anxiety and psychosis. While in foster care, she didn't get eyeglasses, orthopedic shoes to treat her limp or needed dental care, despite months of complaints of tooth pain, the lawsuit said.
Bouncing between foster homes and emergency shelters, she threatened suicide twice and was moved to a therapeutic foster home in December 2014 -- months after her providers agreed she needed that heightened level of care.
DCS's permanency goal for the 10-year-old girl is permanent foster care, "meaning that DCS has concluded that she has little, if any, chance of leaving foster care over the next eight years," the suit said.
Other cases include pre-adolescent children facing months-long delays in mental health treatments ordered by their doctors. Many experienced steep declines in mental health while in custody. Suicidal children faced long delays for basic psychological evaluations and treatment, the lawsuit said.
In one case, a juvenile court called DCS's failure to provide services for siblings in need of therapy "appalling," the suit said.
In another, a boy missed 60 days of first grade because DCS failed to ensure he had transportation to and from school after placing him with relatives. The 8-year-old was also made to travel three hours each way in a transport van for a two-hour visit with his mother, instead of coordinating transportation for his mother.
One boy in state custody was placed with an aunt and uncle who used corporal punishment and who in February 2014 posted a YouTube video of the uncle using a Taser on a 15-year-old child living in the house.
"While these facts were known to the state, it never investigated" the family, the suit said.
The dysfunction in the child welfare system doesn't have a single solution, but comprehensive reform is urgently needed, said Anne Ronan, staff attorney with the nonprofit Arizona Center for Law in the Public Interest.
Funding for preventive services to keep families intact, policies like child-care subsidies that support low-income families, robust substance-abuse treatment options and aggressive efforts to recruit and support foster families are among the solutions, she said.
"What we're hoping is they sit down and take a real careful look at the whole system," she said. "For so long the policymakers have only paid attention to the crisis. As soon as it seems the crisis has subsided, everybody stops looking at the problem. ... When you look at states that are successful, you see that they look at all of the pieces."
(c)2015 The Arizona Daily Star (Tucson, Ariz.)