1  Laurence M. Berlin
    307 E. University Blvd.
 2  Tucson, AZ 85705
    (602) 882-0298
 3  PCC# 3984
 4  Attorney for Plaintiffs
   
 5  John Stampoly, Esq.
    Elliot Glicksman, Esq.
 6  STOMPOLY, STROUD, GIDDINGS & GLICKSMAN, P.C.
    P.O. Box 190
 7  Tucson, AZ 85702-0190 
    (602) 628-8300
 8  Stompoly PCC# 55460
    Glicksman PCC# 20896
 9  Attorney's for Plaintiffs

10             IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
11
12                  IN AND FOR THE COUNTY OF MARICOPA

13  ALLAN BOGUTZ, as Guardian Ad Litem for SERGIO            ) NO. CV94-04159 
    B., CHRISTINA W., GAIGE W., RACHEL W., YANNA             )
14  P., TIANNA S., YESSINIA R., MICHELLE E., Minors,         ) 
    Individually and on Behalf of All Others Similarly       ) AMENDED
15  Situated;                                                ) COMPLAINT
                                                             ) [INDIVIDUAL AND
16                                           Plaintiffs,     ) CLASS ACTIONS
                                                             ) FOR INJUNCTIVE
17  vs.                                                      ) RELIEF AND
                                                             ) DAMAGES; CIVIL
18  THE STATE OF ARIZONA; MARSHA PORTER and                  ) RIGHTS; TORT,
    PENNY WILLRICH and RALPH DUNBAR, individually            ) NON-MOTOR
19  and as PROGRAM ADMINISTRATORS for ARIZONA                ) VEHICLE]
    ADMINISTRATION FOR CHILDREN, YOUTH &                     )
20  FAMILIES; LINDA MOORE-CANNON and LINDA J.                )
    BLESSING, individually and as DIRECTOR, ARIZONA          )
21  DEPARTMENT OF ECONOMIC SECURITY; ROBERT                  )
    RAMSEY, a single man; KATHERINE STEVENSON,               )
22  individually and as an employee of Arizona Department    ) (Assigned to Judge:
    of Economic Security, STEPHEN ELLIS, individually and    ) Cheryl Hendrix)
23  as an employee of Arizona Department of Economic         )
    Security; W. LAMAR OGDEN, individually and as an         )
24  employee of Arizona Department of Economic Security      )
    JUAN M. COSS, individually and as an employee of         )
25  Arizona Department of Economic Security; ANN             )
    BERBA, individually and as an employee of Arizona        )
                                                                 
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 1  Department of Economic Security; DAVID COSSI,            )
    individually and as an employee of Arizona Department    )
 2  of Economic Security; HOLLY HAMMOND, individually        )
    and as an employee of Arizona Department of Economic     )
 3  Security; JANICE and WAYNE EWING, a married              )
 4  couple; SARA EUTSEY, individually and as an employee     )
    of Arizona Department of Economic Security; KAREN        )
 5  JABLONSKY, individually and as an employee of            )
    Arizona Department of Economic Security; DEBRA           )
 6  KRAEMER, individually and as an employee of Arizona      )
    Department of Economic Security; MICHELLE MORAN,         )
 7  individually and as an employee of Arizona Department    )
 8  of Economic Security; THOMAS VICECONTE,                  )
    individually and as an employee of Arizona Department    )
 9  of Economic Security; CAROL PUNSKE, individually         )
    and as an employee of Arizona Department of Economic     )
10  Security; STEVE MALANGONE, individually and as an        )
    employee of Arizona Department of Economic Security;     )
11  RAYMOND CANFORA, individually and as an                  )
12  employee of ARIZONA DEPARTMENT OF ECONOMIC SECURITY;     )
    JOHN AND JANE DOES I-X, CPS workers and                  )
13  supervisors with responsibility for Plaintiffs Tianna S. ) 
    and Yessinia R.; JOHN DOE ORIOLE, foster father of       )
14  Tianna S.; JOHN DOES XI-XX, CPS workers and              )
15  supervisors with responsibility for Plaintiff Rachel     )
    W.; JOHN DOE SAMSON, JANE DOE SAMSON and                 )
16  JUNIOR SAMPSON, a foster family with which Rachel W.     )
    was placed; CASEY FAMILY PROGRAM, a child care           )
17  agency licensed by the State of Arizona; FORREST LIEN,   )
    individually and as an employee of the Casey Family      )
18  Program; JOHN and JANE DOES XXI-XXX, CPS workers         )
19  and supervisors with responsibility for Plaintiff Yanna  )
    P.; JOHN HIGGINS, individually and as an employee of     )
20  Arizona Department of Economic Security; FRANK           )
    RATEY, individually and as an employee of Arizona        )
21  Department of Economic Security; M. YARGER,              )
    individually and as an employee of Arizona Department    )
22  of Economic Security; WANDA M. SANDERS,                  )
23  individually and as an employee of Arizona Department    )
    of Economic Security; MARCIE VELEN, individually         )
24  and as an employee of Arizona Department of Economic     )
25  Security; W. W. WALKER, individually and as an           )
    employee of Arizona Department of Economic Security;     )
26  and JOHN CONZEMIUS, individually and as an               )
    employee of Arizona Department of Economic Security;     )
27                                                           )
                                       Defendants.           )
28  -------------------------------------------------------- )
                                                                 
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 1       Plaintiffs, individually and on behalf of all others similarly situated, allege: 
 2
 3                                   GENERAL STATEMENT
 4       1. Plaintiffs through counsel, bring this special and civil action on their own 
 5  behalf and on behalf of the classes they represent to obtain injunctive relief, both 
 6  compensatory and punitive damages, costs of suit and attorneys' fees, and such 
 7  further relief from the Defendants named herein as the Court may deem 
 8  appropriate.
 9       2. The special class action for injunctive relief is brought on behalf of the 
10  class of all foster children who are in the custody of the Arizona Department of 
11  Economic Security (hereinafter "DES") and on behalf of all children who will 
12  become foster children in the protective custody of DES in the foreseeable future. 
13       3. The civil damages class action is brought on behalf of all foster children 
14  in the protective custody of DES since January 1, 1986 and for whom DES reflects a 
15  "valid" finding that the child was moderately, seriously or severely sexually 
16  abused while in State-regulated foster homes and in custody of DES.
17       4. The federal constitutional provisions, Arizona statutes and regulations 
18  pursuant to which Plaintiffs bring this lawsuit impose duties upon the Defendants 
18  to investigate complaints of child abuse or neglect promptly (including, without 
19  limitation complaints of abuse or neglect in foster care settings,) to provide 
20  reasonable family preservation services to keep families together and reunification 
21  services to reunite them once the child has been removed from the home, to 
22  provide appropriate placements and proper care to children placed in their 
23  custody, and to provide permanent homes for children either by returning them to
24  them (sic) to their own families or by finding them an adoptive home.
25       25. DES has been (or will be) granted protective custody of Plaintiff children, 
26  and children in Plaintiff classes, for the explicit purpose of assuring they 
27  receive the care and guidance that will best serve their emotional, mental and
28
                                                                 
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 1  physical welfare. Nevertheless, children in DES's protective custody are subjected 
 2  to further abuse or neglect.
 3       6. Data kept by DES, along with studies performed by or on behalf of DES 
 4  and memoranda by Child Protective Services (hereinafter "CPS"), personnel reflect 
 5  extensive violations of Plaintiffs' constitutional, statutory and regulatory rights, 
 6  resulting in a high incidence of neglect, abuse and molestation of children in foster 
 7  care while in DES protective custody.
 8       7. The Arizona child welfare system operates in violation of the Fourteenth 
 9  Amendment to the Constitution of the United States and in violation of Arizona 
10  Revised Statutes, Title 8, Chapter 5, Articles 1 and 3 along with the regulations 
11  promulgated thereunder, and  13604.1, 14046, 1410, 1417 and 3552. Those 
12  Arizona statutes and regulations create liberty interests to which Plaintiffs, and 
13  children in Plaintiff classes, are entitled under state law. These same statutes and 
14  regulations also establish standards with which federal civil rights law requires 
15  persons acting under color of law to comply for the benefit of children in state 
16  protective custody. By violating state law and established child welfare and social 
17  working standards, Defendants have deprived and continued to deprive Plaintiffs, 
18  and children in the Plaintiff classes, of liberty interests in violation of the Due 
19  Process Clause of the Fourteenth Amendment. These violations result directly 
20  from Defendants' actions and inactions and are irreparably injuring children, the 
21  protection of whom is the responsibility of DES.
22       8. Plaintiffs, on behalf of themselves and on behalf of the class of all other 
23  foster children in the protective custody of DES, and to be in the custody of DES in
24  the foreseeable future, seek declaratory and injunctive relief to enforce their rights 
25  under the United States Constitution, state statutes and regulations, and in 
26  Accordance with established professional child welfare standards.
27       9. Plaintiffs, on behalf of themselves and on behalf of the class of all other 
28  foster children in the protective custody of DES, from January 1, 1986 to the present
                                                                 
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 1  and for whom there have been "valid" findings of moderate, serious or severe 
 2  sexual abuse while in foster care settings, seek compensatory damages against all 
 3  Defendants. They also seek exemplary or punitive damages under 42 USC 1983 
 4  against those Defendants, in their individual capacities, who are "persons" acting 
 5  under color of law; and pursuant to Arizona statutory and common law against 
 6  the foster parent Defendants.
 7
 8                                  PARTIES
 9       10. DES established a "special relationship" with each of the child Plaintiffs 
10  and children in the Plaintiff classes, and has or has had each of them in "protective 
11  custody".
12       11. Allan Bogutz, is Guardian Ad Litem for the children Plaintiffs pursuant 
13  to Arizona Superior Court Minute Order dated December 10, 1993. Allan Bogutz is 
14  an attorney with expertise in the areas of conservatorship, guardianship, estate and 
15  financial planning and management. The true identities of the individual and 
16  representative children Plaintiffs is being served on Defense Counsel with this 
17  Amended Complaint. Plaintiffs' counsel requests Defendants to keep the true 
18  identities of the children confidential, and will request such an order from the 
19  Court in due course.
20       12. All of the individual/representative Plaintiffs are or were residents of 
21  Pima County, Arizona and live or lived in Pima County, Arizona at all times 
22  material to this lawsuit. Each of the case managers, foster home 
23  licensing/coordinating workers, and CPS supervisors who are Defendants in this 
24  lawsuit were employed in and residents of Pima County, Arizona at all times 
25  relevant hereto. All of the acts and omissions of which the named Plaintiffs 
26  complain occurred in Pima County, Arizona.
27       13. DES (the Arizona Department of Economic Security) is a department of 
28  the Defendant State of Arizona and serves as an umbrella social services agency
                                                                 
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 1  with overall responsibility for the planning, implementation and administration 
 2  of child welfare and family preservation services for the State of Arizona. The 
 3  Department of Economic Security administers the Administration for Children, 
 4  Youth and Families, and Child Protective Services and operates the State's 
 5  protective services, foster care and adoption services throughout the state, 
 6  including without limitation the local "division" in Pima County.
 7       14. Defendants Linda MooreCannon and Linda J. Blessing are sued for 
 8  injunctive relief in their official capacities as present and past Directors of Arizona 
 9  Department of Economic Security. As Directors they have had responsibility for 
10  the policies, practices and operation of the Department of Human Services, 
11  including the areas of child protective services, foster care, and adoption. They are 
12  also sued in their individual capacities as "persons" acting under color of law in 
13  violation of 42 USC  1983 for the damages sustained by foster children in DES 
14  protective custody, further described below.
15       15. Defendants Marsha Porter, Ralph Dunbar and Penny Willrich are sued 
16  for injunctive relief in their official capacities as present and past Program 
17  Administrators for the Arizona Administration for Children, Youth and Families, 
18  including CPS. As Program Administrators, they have had responsibility for the 
19  policies, practices and operation of the Department of Human Services, including 
20  the areas of child protective services, foster care, and adoption. They are also sued 
21  in their individual capacities as "persons" acting under color of law in violation of 
22  42 USC  1983 for the damages sustained by foster children in DES protective 
23  custody, as further described below.
24   
25  SERGIO B.
26       16. In or around August, 1990, Sergio B., together with his siblings, Rene B. 
27  and Erica B., were taken into protective custody by Defendant DES. They were kept 
28
                                                                 
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  1  in the protective custody of DES until March, 1993, when the dependency and 
 2  severance petitions were dismissed.
 3       17. DES placed Sergio, Rene and Erica with a maternal aunt on August 28, 
 4  1990. That placement lasted approximately six months. Thereafter, during most of 
 5  the following two years, DES placed the children in a series of foster homes, 
 6  shelters and with relatives. During most of that time, Sergio, Rene and Erica were 
 7  not all placed together.
 8       18. On or about July 1, 1991, Sergio B. was placed in the foster home of 
 9  Defendant Robert Ramsey. On or about August 15, 1992, his brother, Rene, was 
10  placed in the foster home of Defendant Robert Ramsey. Sergio and Rene were 
11  both removed from Defendant Ramsey's foster home on or about November 30, 
12  1992.
13       19. Sergio B. is a victim of severe sexual abuse by others in the Ramsey 
14  foster home, due to lack of supervision in and of Defendant Ramsey's foster home. 
15  Sergio was also sexually abused by Defendant Robert Ramsey while a foster child in 
16  DES custody.
17       20. Upon removal from Defendant Ramsey's foster home, Sergio and Rene 
18  were placed in a shelter until December 11, 1992, when they were placed with their 
19  maternal grandmother. Their sister, Erica, had been placed with their maternal 
20  grandmother since on or about August 14, 1991. The three siblings remain in the 
21  care and custody of their maternal grandmother at this time, receiving inadequate 
22  support services from DES.
23       21. Defendant Robert Ramsey was a foster parent of Sergio B. licensed by 
24  DES. He provided inadequate and inappropriate services, including without 
25  limitation inadequate supervision, resulting in the rape and sexual molestation of 
26  Sergio by one or more foster children placed in that home by DES and/or by other 
27  residents in that home. On information and belief, foster father Ramsey also 
28  sexually abused Sergio.
                                                                 
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 1       22. Defendants Katherine F. Stevenson and Stephen Ellis were CPS case 
 2  managers employee [ed] by DES, for Sergio B.'s family, during the period from August, 
 3  1990 through December, 1992. Defendants W. Lamar Ogden and Juan M. Coss were 
 4  the CPS supervisors of the work of those case managers for Sergio's family. 
 5  Defendants Ann Berba, David Cossi and Holly Hammond were CPS foster home 
 6  licensing and/or coordinating workers and/or supervisors, employed by DES, with 
 7  responsibility for the evaluation, licensing, training and supervision of Defendant 
 8  Robert Ramsey and his foster home during the period from initial licensing 
 9  through closing of the Ramsey foster home.
10       23. The State of Arizona and its case managers, foster home licensing 
11  and/or coordinating workers and supervisors failed to provide reasonable family 
12  preservation and/or reunification services to Sergio's family. Further, they failed 
13  to provide an appropriate case plan and case management for Sergio's family and 
14  failed to provide reasonable foster home evaluation, licensing, training and 
15  supervision at the Ramsey home.
16       24. As a direct and proximate result of Defendants' acts and omissions, 
17  outlined above, Sergio B. suffered personal injuries and violations of his civil 
18  rights, including without limitation severe sexual abuse while in the Ramsey 
19  foster home setting and in the custody of DES, psychological damage and harm to 
20  his family relationships.
21
22  TINA W. and her baby, GAICE W.
23       25. In or around February, 1991 legal and physical custody of Tina W. was 
24  taken by DES. She was 14 years of age.
25       26. DES obtained custody of Tina by means of inappropriate misleading and 
26  threatening statements to her parents. DES then also took custody of Tina's 
27  siblings.
28
                                                                 
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 1       27. DES initially placed Tina with a maternal aunt in Texas. After running 
 2  away from the Aunt's home. Tina was apprehended and placed in a DES shelter 
 3  and then was sent back to the maternal aunt in Texas until a November 13, 1991 
 4  order by the Juvenile Court returned Tina to the home of her parents. 
 5  Subsequently, Tina was taken again by CPS and placed in shelters in Arizona. 
 6       28. In May, 1992, Defendants Janice and Wayne Ewing applied to become 
 7  Tina's foster parents. DES specially licensed them for that purpose, and placed 
 8  Tina with them, in August, 1992.
 9       29. Defendants Ewing's were overindulgent, and while Tina was in their 
10  foster home she was permitted to be out after curfew, developed alcohol and other 
11  substance abuse problems, was cited for incidents of driving while intoxicated, 
12  suffered as a student, and kept company with gang members and other bad 
13  influences. Tina became pregnant while in Defendant Ewing's foster home. 
14       30. After it was learned in the same week (approximately April 30,1993) that 
15  Tina was pregnant and had been arrested for drunk driving, DES removed her 
16  from the foster home of Defendants Ewing and returned her to the physical 
17  custody of her parents.
18       31. Following Tina's return to her family, she went through substance 
19  abuse rehabilitation and gave birth to a son, Plaintiff Gaige W. Gaige appears to be 
20  developmentally delayed due to fetal alcohol syndrome and/or other substance 
21  abuse problems of' the mother while she was in the protective custody of DES and 
22  in the foster home of Defendants Ewing.
23       32. Tina W., still under the age of 18 years, is living independently, with 
24  assistance from her parents and without assistance from DES. Baby Gaige is 
25  presently in the care and custody of his maternal grandparents, without assistance 
26  from DES.
27       33. Defendants Janice and Wayne Ewing failed to provide adequate and 
28  appropriate supervision for Plaintiff Tina W.
                                                                 
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 1       34. During the period from February, 1991 through Tina's return to her 
 2  biological parents in or around May, 1993, DES and its case managers, foster home 
 3  licensing/coordination workers and supervisors failed to provide appropriate 
 4  family preservation and/or unification services, case planning and case 
 5  management services, foster parent evaluation, licensing, training and 
 6  supervision. Since Tina's return to her parents in or around May, 1993, DES has 
 7  failed to provide adequate and appropriate followup services to Tina W. and her 
 8  family, including her parents and her baby, Plaintiff Gaige W.
 9       35. As a direct and proximate result of Defendants' acts and omissions, 
10  outlined above, Plaintiff Tina W. was a victim of neglect and severe sexual abuse, 
11  resulting in substance abuse problems and unwed, unplanned pregnancy at the age 
12  of 15 years, along with other physical, mental and emotional damages. The infant 
13  Plaintiff Gaige W. and his mother, have been damaged by wrongful birth and/or 
14  wrongful life resulting from the unplanned pregnancy and fetal alcohol syndrome 
15  (and/or other developmental disabilities) resulting from the failure to provide 
16  adequate supervision and protective services to Tina, while in foster care and 
17  DES custody.
18       36. Defendants Sara Eutsey, Deborah Kraemer, Karen Jablonsky and 
19  Michelle Moran were CPS workers, employed by DES, for Tina W.'s family during 
20  the period from December, 1990 through the present. Defendants Thomas 
21  Viceconte and Carol Punske were the CPS supervisors of the work of those case 
22  managers for Tina and her family. Defendants Steve Malangone and Raymond 
23  Canfora were the foster home licensing and/or coordinating workers and 
24  supervisors, employed by DES, with responsibility for the evaluation, licensing, 
25  training and supervision of Defendants Ewing's foster home from initial licensing 
26  through closing of the Ewing foster home.
27       37. The State of Arizona and its case managers, foster home licensing 
28  and/or coordinating workers and supervisors failed to provide reasonable family
                                                                 
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 1  preservation and/or reunification services to Tina's family. Further, they failed to 
 2  provide an appropriate case plan and case management for Tina's family and 
 3  failed to provide reasonable foster home evaluation, licensing, training and 
 4  supervision at the Ewing home.
 5       3S. As a direct and proximate result of Defendants' acts and omissions, 
 6  outlined above, Tina W. and Gaige W. suffered personal injuries and violations of 
 7  their civil rights, including without limitation severe sexual abuse of Tina while 
 8  in the Ewing foster home setting and in the custody of DES, physical, mental and 
 9  emotional damage to Tina and Gaige W. and psychological damage and harm to 
10  the family relationships.
11
12  TIANNA S. and YESSINIA R.
13       39. Tianna S. and Yessinia R. are sisters, born August 1, 1986 and November 
14  7, 1982, respectively. DES became involved with them and their family, including 
15  several siblings, in 1986; and their family became an active CPS case.
16       40. Tianna, Yessinia and their siblings were taken into protective custody by 
17  DES in 1993 and were split up into different foster homes. CPS failed to arrange 
18  appropriate visitation between and among the children and their mother during 
19  the time they were in foster care. Over a period of months, the children were 
20  reunited in the physical custody of their paternal grandmother. In 1994, they were 
21  returned to the physical custody of their parents, with whom they now reside.
22       41 Although the parents and other members of the extended family were 
23  willing and able to comply with an appropriate case plan to keep the children with 
24  family, DES wrongfully rejected such plans, splitup the siblings, and put the 
25  children in foster and institutional placements in which they were neglected and 
26  abused.
27       42. An initial placement by DES of Tianna S. and at least one sibling was in 
28  the foster home of Racine and Robert Getz. When that foster home was closed due 
                                                                 
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 1  to allegations (followed by convictions of the foster parents) of child sex abuse, the   
 2  children were transferred to other foster homes.
 3       43. While in a subsequent foster home placement, during a visit with her 
 4  mother, Tianna confided that her present foster father, "Oriole", had put his penis 
 5  in her bottom and she bled and it hurt (The true name of the foster father is not 
 6  known to Plaintiffs counsel or the child's mother, and this identification is based 
 7  on the child's pronunciation). The child's statement was also heard by a parent 
 8  aid. Tianna's mother and the parent aid reported it to CPS social worker Margaret 
 9  Talvera.
10       44. During the period when DES was reuniting the children with their 
11  paternal grandmother and eventually returning them to their parents, there was a 
12  period of several months when DES had no case manager assigned to Tianna, 
13  Yessinia and their family.
14       45. Prior to all of her siblings being taken into DES custody and placed in 
15  foster care, Yessinia R. was taken into DES custody and placed with her maternal 
16  grandmother where she was molested by her grandmother's boyfriend. She was 
17  then returned by DES to her parents.
18       46. DES has not provided Tianna S. and Yessinia R. and their siblings with 
19  appropriate family preservation and/or reunification services, with appropriate 
20  case planning and case management, or with adequate foster care licensing, 
21  evaluation or supervision of the foster parents and/or of the case managers and
22  licensing/ coordinating workers. Likewise, Tianna S. and Yessinia R. have not 
23  been provided adequate followup services.
24       47. Plaintiffs' counsel has not received the CPS records relating to this 
25  family and is therefore unable to determine the true identities of the particular 
26  case managers, foster parents, foster home licensing/ coordinating workers and 
27  CPS supervisors whose acts and omissions resulted in the neglect and abuse 
28  outlined above. Therefore, they are identified herein as John and Jane Does IX 
                                                                 
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 1   and this Complaint will be amended to reflect their true identities when and as 
 2   appropriate through the course of discovery and preparation for trial.
 3       48. As a direct and proximate result of Defendants' acts and omissions, 
 4   outlined above, Tianna S. and Yessinia R. have suffered and continue to suffer, 
 5   physical, mental, and emotional harm. The harm suffered by the children 
 6   Plaintiffs includes, without limitation, physical and emotional abuse, sexual 
 7   molestation, child neglect and abandonment. Due to the harm caused by DES, 
 8   each plaintiff has needed and will continue to need psychological, medical and/or 
 9   other therapeutic care at a cost in excess of the jurisdictional limit of this Court, to 
10   be proven at trial.
11
12   RACHEL W.
13       49. Rachel W., born December 24, 1979, was taken into protective custody by 
14   DES in 1987, at the age of eight years. She remains in DES custody and is now in 
15   her seventh year of foster care placements.
16       50. DES failed to arrange visitation between Rachel and her mother during 
17   the first six months that DES had the child and has failed to provide adequate 
18   visitation since that time.
19       51. While in DES custody, Rachel has been transferred, without appropriate 
20   preparation, an excessive number of times, including without limitation, several 
21   placements within the Casey Family Program, a child care program licensed by 
22   DES.
23       52. While in the foster home of John Doe and Jane Doe Samson, Rachel was 
24  repeatedly and continuously molested by Junior Doe Samson, the adult son of the 
25  foster parents. This occurred approximately during 1992, the year Rachel was 
26  thirteen years old.
27       53. Approximately a year later (June 9, 1993,) Rachel's mother was informed 
28  by Social Worker Forrest Lien that Rachel had "been sexually active with two 
                                                                 
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 1  males on and off during the last year." He refused to give her any more 
 2  information except that Rachel had been transferred to a "Therapeutic Foster 
 3  Home and [was] coping as well as expected."
 4       54. DES has not provided Rachel W. with appropriate family preservation 
 5  and/or reunification services, with appropriate case planning and case 
 6  management, or with adequate foster care licensing, evaluation or supervision of 
 7  the foster homes and/or of the case managers and licensing/coordinating workers.
 8       55. Plaintiffs' counsel has not received the CPS records relating to this 
 9  family and is therefore unable to determine the true identities of all particular case 
10  managers, foster parents, foster home licensing/coordinating workers and CPS 
11  supervisors whose acts and omissions resulted in the neglect and abuse outlined 
12  above. Therefore, they are identified herein as John and Jane Does XIXX and this 
13  Complaint will be amended to reflect their true identities when and as appropriate 
14  through the course of discovery and preparation for trial.
15       56. Defendants John Doe Samson, Jane Doe Samson and Junior Doe 
16  Samson are only known to Plaintiffs' counsel and Rachel's mother by the name 
17  Samson, and this complaint will be amended to reflect their true identities when 
18  and as appropriate through the course of discovery and preparation for trial.
19  Defendants Casey Family Program and Forrest Lien are a child care agency 
20  and social worker, respectively, licensed and supervised by DES. 
21       57. As a direct and proximate result of Defendants' acts and omissions, 
22  outlined above, Rachel has suffered, and continues to suffer, physical, mental, and 
23  emotional harm. The harm suffered by the child Plaintiff includes, without 
24  limitation, physical and emotional abuse, sexual molestation, child neglect and 
25  abandonment. Due to the harm caused by Defendants, the plaintiff has needed 
26  and will continue to need psychological, medical and/or other therapeutic care at a 
27  cost in excess of the jurisdictional limit of this Court, to be proven at trial.
28
                                                                 
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 1  YANNA P.
 2       58. Yanna P., born May 21,1982, was taken into custody and placed in foster 
 3  care in 1988, at the age of six years.
 4       59. Yanna's mother, after learning that the child may have been sexually 
 5  abused by her father (who was not in residence with the mother) requested 
 6  counseling and therapeutic services from DES. Instead of providing those 
 7  necessary family preservation services, case manager John Higgins removed
 8  Yanna and her siblings from their home and placed them in foster care.
 9       60. While in foster care, Yanna was sexually abused by a teenage foster child 
10  also placed in the same foster home by DES.
11       61. Following her sexual abuse in foster care, Yanna and her siblings were 
12  returned by DES to their mother, with whom they still reside.
13       62. DES has not provided Yanna P. with appropriate family preservation 
14  services, with appropriate case planning and case management, or with adequate 
15  foster care licensing, evaluation or supervision of the foster parents and/or of the 
16  case managers and licensing/ coordinating workers.
17       63. Plaintiffs' counsel has not received the CPS records relating to this 
18  family and is therefore unable to determine the true identities of all particular case 
19  managers, foster parents, foster home licensing/ coordinating workers and CPS 
20  supervisors whose acts and omissions resulted in the neglect and abuse outlined 
21  above. Therefore, they are identified herein as John and Jane Does XXIXXX and 
22  this Complaint will be amended to reflect their true identities when and as 
23  appropriate through the course of discovery and preparation for trial. Defendant 
24  John Higgins was a case manager, employed by DES, for Yanna P. and her family.
25       64. As a direct and proximate result of Defendants' acts and omissions, 
26  outlined above, Yanna has suffered, and continues to suffer, physical, mental, and 
27  emotional harm. The harm suffered by the child Plaintiff includes, without 
28  limitation, physical and emotional abuse, sexual molestation, child neglect and 
                                                                 
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 1  abandonment. Due to the harm caused by Defendants, the plaintiff has needed 
 2  and will continue to need psychological, medical and/or other therapeutic care at a 
 3  cost in excess of the jurisdictional limit of this Court, to be proven at trial. 
 4  
 5  MICHELLE E.
 6       65. Michelle E., born January 23,1991, was taken into custody by CPS in May, 
 7  1993, along with her siblings, when she was two years old. She was placed in the 
 8  foster care of Robert and Racine Getz by case manager Frank Ratey on May 21,1993.
 9       66. While in the Getz foster home, Michelle was the subject of 
10  pornography made by foster parents Robert and Racine Getz, and was sexually 
11  abused in the production of that pornography, and otherwise, during her 
12  placement in that foster home.
13       67. Michelle's mother was informed by a CPS worker, in December, 1993, of 
14  the use of her daughter in child pornography while in foster care. That was 
15  approximately three months after the Getz foster home was closed due to the 
16  discovery of abuses of foster children in that home, and approximately six months 
17  after Michelle and her brother were transferred to a different placement.
18       68. The child pornography and sexual abuse included, without limitation, 
19  being undressed with another little girl, exposing and touching each other's 
20  genitalia.
21       69. Michelle remains in the physical custody of DES. 
22       70. Defendants M. Yarger, Wanda M. Sanders, Marcie Velen, W. W. Walker, 
23  John Conzemius and Raymond Confora were CPS foster home 
24  licensing/coordinating workers and supervisors with responsibility for the 
25  recruitment, licensing, training, evaluation and supervision of the Getz foster 
26  home. Defendant Frank Ratey was the CPS case manager with responsibility for 
27  the placement of Michelle at the Getz foster home.
28
                                                                 
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 1       71. DES has not provided Michelle E. with appropriate family preservation 
 2  and/or reunification services, with appropriate case planning and case 
 3  management, or with adequate foster care licensing, evaluation or supervision of 
 4  the foster parents and/or of the case managers and licensing/ coordinating 
 5  workers.
 6       72. As a direct and proximate result of Defendants' acts and omissions, 
 7  outlined above, Michelle has suffered, and continues to suffer, physical, mental, 
 8  and emotional harm. The harm suffered by the child Plaintiff includes, without 
 9  limitation, physical and emotional abuse, sexual molestation, child neglect and 
10  abandonment. Due to the harm caused by Defendants, the plaintiff has needed 
11  and will continue to need psychological, medical and/or other therapeutic care at a 
12  cost in excess of the jurisdictional limit of this Court, to be proven at trial.
13
14                                   CLASS ACTION
15       73. This action is brought by the Plaintiffs, individually and in their 
16  representative capacities, as a class action on their own behalf and on behalf of all 
17  others similarly situated, under the provisions of Rule 23 of the Arizona Rules of 
18  Civil Procedure.
19       74. There are two Plaintiff classes: 
20                 Class A, All DES Foster Children, includes children who are 
21            now, or in the foreseeable future will be in the custody of DES and 
22            who are or will be placed by DES in foster family care or in 
23            institutional settings. Approximately 4000 children are now in foster 
24            care and in DES custody throughout the state of Arizona. Class A 
25            seeks only injunctive relief, together with litigation costs and 
26            attorneys'. fees.
27                 Class B, Children Sexually Abused in DES Foster Care, includes 
28            all foster children in DES protective custody from January 1, 1986
                                                                 
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 1       through the present and for whom DES has recorded "valid" findings 
 2       of moderate, serious or severe sexual abuse while placed in foster care 
 3       settings while in DES protective custody. Plaintiffs' counsel estimates 
 4       in excess of 500 children in this class. This estimate is based upon 
 5       discovery in a prior case involving sexual abuse of a DES foster child 
 6       and upon published reports of an evaluation, performed on behalf of 
 7       DES, of the current DES foster child population. Class B seeks 
 8       injunctive relief identical to that sought by Class A, and also seeks 
 9       compensatory and exemplary or punitive damages with regard to the 
10       harm they suffered and continue to suffer as a result of having been 
11       sexually abused and molested while foster children in DES custody. 
12       The Class B also seeks litigation costs and attorneys' fees.
13       75. Each class is so numerous that joinder of all members is impracticable.
14       76. The exact number of children in each class, is not known to Plaintiffs 
15  or Plaintiffs' counsel, but are estimated to be as identified and described in paragraph 
16  74, above. DES maintains computer data bases from which the class members can 
17  be rapidly and specifically identified. 
18       77. The claims of the named Plaintiffs are typical of the claims of both 
19  classes.
20       78. There are questions of law and fact common to each class and which 
21  predominate over any question affecting individual members of either class. The 
22  Defendants have acted on grounds generally applicable to both classes, and 
23  prosecution of separate actions by either class, or by class members, would create a 
24  risk of inconsistent or varying adjudication. Common questions of law and fact 
25  include, without limitation, the following:
26            a. Whether the Defendants' actions and inactions violate the 
27       rights conferred upon the Plaintiff children by the Due Process Clause 
28       of the Fourteenth Amendment to the United States Constitution. 
                                                                 
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                                        19

 1            b. Whether the Defendants' actions and inactions violate the 
 2       rights conferred upon Plaintiff children by the federal Child Abuse 
 3       Prevention and Treatment Act.
 4            c. Whether the Defendants' actions and inactions deprive 
 5       Plaintiff children of their rights created by the Arizona Revised 
 6       Statutes, Title 8, Chapter 5 and regulations promulgated thereunder, 
 7       including without limitation Articles 55, 57 and 58 of DES's Human 
 8       Services Manual, and the reasonably established child welfare and 
 9       social working standards;
10            d. Whether each and all of the rights, duties and standards 
11       outlined in paragraph 99, below, along with the alleged failures to
12       comply with those rights, duties and standards, apply to the care of 
13       children in DES foster care and, if so, whether those rights, duties and 
14       standards have been violated and breached.
15            e. To the extent violations and breaches have occurred and 
16       continue to occur, whether and to what extent declaratory and 
17       injunctive relief is appropriate.
18            f. Regarding Class B, Children Sexually Abused in DES Foster 
19       Care, whether they have been damaged as a result of said violations 
20       and breaches, and whether compensatory and exemplary and/or 
21       punitive damages should be awarded. 
22  There are no individual questions affecting individual members of Class A, All 
23  DES Foster Children. The only individual questions affecting individual members 
24  of the Class B. Children Sexually Abused in DES Foster Care, are the precise 
25  measure of damages to which each class member is entitled. 
26       79. The Plaintiff children and the members of Class B, Children Sexually 
27  Abused in DES Foster Care, have been victimized, as outlined above, as a direct
28
                                                                 
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01  and proximate result of the violations and breaches of the rights, duties and 
02  standards described herein.
03       80. Plaintiffs will fairly and adequately protect the interests of the classes 
04  which they represent. The interests of the class representatives are consistent with 
05  those of the other members of the class. In addition, Plaintiffs are represented by 
06  experienced and able counsel, who have expertise in the areas of child welfare and 
07  family preservation litigation, tort law, civil rights law, trial practice and class 
08  action representation.
09       81. The class action is superior to other available methods for the fair and 
10  efficient adjudication of this controversy. Due to the number and nature of 
11  common questions of fact and law, multiple separate lawsuits would not serve the 
12  interest of judicial economy.
13       82. A substantial probability exists that a sizable claim for 
14  exemplary/punitive damages exists on behalf of all of the members of Class B, 
15  Children Sexually Abused in DES Foster Care. In order to achieve maximum 
16  judicial economy and fairness to litigants, a class action is desirable to assure that an
17  award of exemplary/punitive damages is made in a single proceeding and fairly 
18  and uniformly allocated to members of the affected class.
19
20                           EXEMPLARY AND/OR PUNITIVE DAMAGES
21       83. The acts and omissions committed by the Civil Rights Defendants, in 
22  their individual capacities, outlined above, are of such a nature that those 
23  Defendants should be assessed exemplary or punitive damages pursuant to 42 USC 
24   1983. In that respect, the acts and omissions of Defendants were done in bad 
25  faith, with malice, intent or deliberate indifference to and/or reckless disregard for 
26  the health, safety and rights of the Plaintiffs.
27       84. Each of the Civil Rights Defendants, in their individual capacities, and 
28  the foster parent Defendants, have conducted themselves in a grossly negligent, 
                                                                 
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                                        21

 1  willful, wanton and/or intentional manner, with an awareness of the substantial 
 2  risk of serious harm to the children. Plaintiffs in their care, and have conducted 
 3  themselves with such an "evil mind" as to justify an award of exemplary or 
 4  punitive damages under state law.
 5
 6                             CAUSES OF ACTION 
 7  Count One: 42 USC 1983, Violation of Civil Rights
 8       85. Each and all of the allegations contained in the foregoing paragraphs are 
 9  incorporated herein as if fully set forth at this point.
10       86. The acts and omissions of each of the Defendant case managers, foster 
11  home licensing workers/coordinators and supervisors identified herein with 
12  regard to each named Plaintiff; as well as the case managers, foster home licensing 
13  workers/coordinators and supervisors with regard to each class member, and the 
14  agency directors and program administrators, all in their individual capacities 
15  (hereinafter "the Civil Rights Defendants",) were done while acting under color of 
16  law, including without limitation, state statutes, regulations, and custom or usage. 
17       87. The acts and omissions of the Civil Rights Defendants violated the 
18  fundamental liberty interests, the substantive and procedural due process rights, 
19  and the equal protection rights of the Plaintiff children and members of both 
20  classes such that those acts and omissions are constitutional violations for which 
21  42 USC  1983 provides a remedy.
22       88. As a result of the acts and omission of the Civil Rights Defendants, 
23  outlined above, Plaintiffs and Plaintiff class members in DES custody have been 
24  deprived of their constitutional rights to freedom from harm, to have care and 
25  treatment decisions for them made in accordance with established professional 
26  standards, and to have care and treatment provided to them in accordance with 
27  such established professional standards, all in violation of the Fourteenth 
28  Amendment and 42 USC 1983.
                                                                 
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                                        22

 1       89. As a result of the acts and omissions outlined above, Plaintiffs have 
 2  been deprived of their rights to liberty and to placement in the least restrictive 
 3  setting, consistent with the exercise of professional judgment, in violation of the 
 4  Fourteenth Amendment and 42 USC 1983.
 5       90. As a result of the acts and omissions outlined above, Plaintiffs have 
 6  been deprived of their right to family integrity in violation of the Fourteenth 
 7  Amendment and 42 USC 1983.
 8       91. Each of the child Plaintiffs, and each member of Class B,  Children>/I>
 9  Sexually Abused in DES Foster Care, has been sexually abused and molested as a 
10  direct and proximate result of the acts and omissions outlined above. They have 
11  also suffered neglect and physical abuse, all resulting in additional physical, mental 
12  and emotional damages.
13
14  Count Two: Negligence, Gross Negligence and Negligence Per Se
15       92. Each and all of the allegations contained in the previous paragraphs are 
16  incorporated herein as if fully set forth at this point.
17       93. At all times material hereto, Defendants, and each of them, in their 
18  individual and official capacities, failed to fulfill the duties outlined above, 
19  creating a foreseeable risk of harm to Plaintiffs and to the Plaintiff members of both 
20  classes, which in the exercise of reasonable care, Defendants should have 
21  understood and from which the Defendants should have protected and should 
22  continue to protect Plaintiffs and the members of both classes.
23       94. The acts and omissions of Defendants, outlined above, were done with 
24  malice and constitute abuse, abandonment or neglect of the child Plaintiffs and 
25  members of both classes pursuant to ARS  8546.04.
26       95. Defendants' acts and omissions violated the provisions of ARS Title 8, 
27  Chapter 5. Articles 1 and 3, and  13604.1, 14046, 1410, 1417 and 3552, and the 
28
                                                                 
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                                        23

 1  regulations contained in Articles 55, 57 and 58 of DES's Health and Human 
 2  Services Manual.
 3       96. As a direct and proximate result of the failure of Defendants, and each of 
 4  them, to fulfill their duties, as outlined above, each of the Plaintiffs and each 
 5  member of Class B, Children Sexually Abused in DES Foster Care, was sexually 
 6  abused and molested while a foster child in the custody of DES. They have also 
 7  suffered neglect and physical abuse, all resulting in additional physical, mental and 
 8  emotional damage.
 9
10  Count Three: Declaratory and Injunctive Relief
11       97. Each and all of the allegations contained in the foregoing paragraphs are 
12  incorporated herein as if fully set forth at this point.
13       98. Plaintiffs, individually and in their representative capacities on behalf of 
14  both classes, seek declaratory relief pursuant to the Uniform Declaratory 
15  Judgments Act, ARS  121831, et. seq.; and injunctive relief pursuant to the 
16  Arizona Rules of Procedure for Special Actions, 17B ARS.
17       99. Plaintiffs, individually and in their representative capacities on behalf of 
18  both classes, allege that declaratory relief is necessary and appropriate to settle and 
19  afford relief from uncertainty and in security with regard to rights, status and other 
20  legal relations between and among the parties to this lawsuit, and to terminate 
21  controversy among them. They further allege that the State of Arizona and state 
22  employee Defendants have been failing and will continue to fail to exercise 
23  discretion which each and all of them have duties to exercise, to perform duties 
24  required by law as to which each and all of them have no discretion, and that each 
25  and all of said Defendants have been making and will continue to make 
26  determinations that are arbitrary, capricious or abuses of discretion in each of the 
27  following respects:
                                                                 
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                                        24

 1            a. Failure to investigate, or delayed or inadequate investigations, 
 2       of reports  of child neglect or abuse;
 3            b. Failure to provide, or delayed or inadequate provision of, 
 4       family preservation and/or reunification services; 
 5            c. Failure to provide foster homes that meet minimum 
 6       licensing requirements, that are properly and adequately supervised by 
 7       the foster parents and/or CPS personnel, and are properly recertified;
 8            d. Failure to provide properly and adequately trained foster 
 9       parents;
10            e. Failure to provide adequate information and support services 
11       to foster parents;
12            f. Failure to provide adequate physical and mental health care 
13       services that are essential to the emotional and physical wellbeing of 
14       children in DES protective custody;
15            g. Failure to provide adequate, complete, timely and appropriate 
16       case management, planning and plan reviews;
17            h. Failure to provide adequate and appropriate stability in 
18       placements and preparation for forced transfers of children from 
19       placement to placement;
20            i. Failure to prevent separation of children from their siblings 
21       who are also in the State's protective custody, and to facilitate visits 
22       with their parents and siblings;
23            j. Failure to hire qualified case managers and foster home 
24       coordinators, and failure to provide adequate training and supervision 
25       for those workers; and
26            k. Failure to maintain child protective caseloads at levels of 
27       manageability permitted by Defendant's own mandates and by 
28       established child welfare and social working standards. 
                                                                 
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                                        25

 1       100. As a direct and proximate result of the failures described in the 
 2  preceding paragraph, and throughout this Complaint, children in DES foster care 
 3  are suffering serious and irreparable harm; and children likely to be in DES foster 
 4  care in the foreseeable future are at high risk of sustaining serious and irreparable
 5  harm.
 6       101. The failure of Defendants, and each of them, to provide children in 
 7  their custody with appropriate safeguards, resources and care for the preservation 
 8  and strengthening of the child's own home and for the protection, maintenance, 
 9  strengthening or enhancement of the child's physical, mental and emotional well-
10  being and social and psychological functioning has been brought to the attention of 
11  the Defendants and their predecessors repeatedly for years. Nevertheless, 
12  Defendants have failed to establish any consistent or sustained improvement in 
13  these respects.

14       WHEREFORE, Plaintiffs request the following:
15            A. Declare this a class action as soon as practical, pursuant to 
16       Arizona Rule of Civil Procedure 23;
17            B. Enter a declaratory judgment pursuant to ARS  121831, et. 
18       seq., that Defendants' policies and practices have denied Plaintiffs and 
19       members of Classes A and B due process of law and equal protection as 
20       guaranteed by the Constitution of the United States;
21            C. Enter a declaratory judgment pursuant to ARS  121831, et. 
22       seq., that Defendants' policies and practices violate provisions of and 
23       rights secured by ARS  Title 8, Chapter 5, Articles 1 and 3, and  13-
24       604.1, 14046, 1410, 1417 and 3552; and the regulations promulgated 
25       thereunder, including without limitation Articles 55, 57 and 58 of the 
26       DES Health and Human Services Manual, and established professional 
27       child welfare standards;
28
                                                                 
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                                        26

 1            D. Grant a permanent injunction pursuant to Arizona Rules of 
 2       Procedure for Special Actions, 17B ARS, necessary and appropriate to 
 3       remedy the Defendants', their successors in office, agents, employees 
 4       and all other persons in active concert and participation with them, 
 5       continuing to violate the rights of the members of Class A, All DES 
 6       Foster Children, under the United States Constitution, Arizona statutes 
 7       and the regulations promulgated thereunder, and established 
 8       professional child welfare standards;
 9            E. Award just and reasonable compensatory damages to each 
10       named Plaintiff and to each Plaintiff in Class B, Children Sexually 
11       Abused in DES Foster Care, each in a just and reasonable amount not 
12       less than the jurisdictional limit of this Court;
13            F. Award exemplary or punitive damages against the Civil 
14       Rights Defendants and foster parent Defendants, and in favor of the 
15       child Plaintiffs and members of Class B, Children Sexually Abused 
16       in DES Foster Care, in a reasonable amount to be determined by the finder 
17       of fact;
18            G. Award to the Plaintiffs the reasonable costs and expenses 
19       incurred in the prosecution of this action, including but not limited to 
20       reasonable attorneys' fees pursuant to 42 USC 1988, ARCP 23, ARS 12-
21       1840, and other applicable law;
22            H. Retain jurisdiction over this matter; and 
23            I. Such further and other relief as the Court may deem
24
25
26
27
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                                        27

 1       appropriate.
 2       RESPECTFULLY SUBMITTED this 25th day of July, 1994.

 3
 4
 5
 6                                           [Signature of Laurence Berlin]
                                            --------------------------------
 7                                          on behalf of Laurence M. Berlin
                                            and on behalf of John G. Stompoly 
 8                                          and Elliot Glicksman of Stompoly,
                                            Stroud, Giddings and Glicksman,
 9                                          Attorney for plaintiffs

10  Original of the foregoing Federal
    Expressed this 25rh day of July,
11  1994, to:
12
    Clerk of the Court
13  Maricopa County Superior Court
    201 West Jefferson
14  Phoenix, AZ 85003
  
16  Copy of the foregoing Federal Express
    this 25th day of July, 
    1994, to:
17  
    Judge Cheryl K. Hendrix
18  Maricopa County Superior Court 
19  222 East Javalina Drive, Room 4E
20  Mesa, AZ 85210-6201

21  Copy of the foregoing mailed
    this 25th day of July, 1994, to:
22
23  Michael Carroll, Esq.
    Stephen Hart, Esq.
24  BURCH & CRACCHIOLO, P.A.
    702 East Osborn Road, Suite 200
25  Phoenix, AZ 85014
 
26

27

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