Bogutz v Arizona 2nd Amended Civil Complaint

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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5

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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6

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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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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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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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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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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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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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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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
28

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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

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