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In the course of the early litigation, Berlin says he began to see a pattern at CPS--the "systemic" failure of caseworkers to follow CPS's own policies and procedures for placing and protecting foster kids. He began to suspect that many foster kids had been sexually abused while under CPS's watch.
After talking to several former foster kids who said they'd been sexually abused while in the system, Berlin teamed up with Tucson attorney Elliot Glicksman and filed a proposed class-action lawsuit in Pima County Superior Court in July 1994.
Former Pima County public fiduciary Allan Bogutz was named the court-appointed guardian for the children, so the lawsuit carries Bogutz's name. Six former foster kids are also named as plaintiffs.
Bogutz alleges that CPS failed to protect kids from sexual abuse and violated the children's civil rights by exposing them to sexual predators.
Beyond unnamed monetary damages, the suit seeks to force CPS to undergo "systemic changes" that amount to simple reforms--such as following already established policies and procedures to protect kids from danger. State attorneys have vigorously opposed such forced "systemic changes," saying the agency has already instituted numerous reforms.
Bogutz seeks to have a "class" approved by the judge--the class being all Arizona children confirmed by the state's own records to have been sexually abused while in state-licensed foster care from 1986 to at least 1995.
Child advocates say a class action filed on behalf of sexually abused foster kids is rare.
"I won't say it's the only one, but I've never heard of one like it," says Howard Davidson, director of the American Bar Association Center for Children and the Law. "It's not because the legal theories aren't clear--when a state has custody of a child, there is more likelihood of liability."
But such lawsuits are uncommon, Davidson says, because "these are not kids who can walk into a downtown Phoenix law firm and say we need help--they are the most disadvantaged people in our society."
The ongoing Bogutz case has inched along for five years--partially because it is an unusual case and partially, say lawyers for the children, because the state has balked at producing names of sex-abuse victims in CPS files.
For years, Bogutz and the state have fought court battles over exactly how many children have been sexually abused in foster care.
In 1996, Pima County Superior Court Judge Michael Brown appointed a "special master," University of Arizona law professor Winton Woods, to determine how many child sex-abuse victims could be identified from the state's own files. Woods asked independent social workers to examine CPS case files in two sample six-month periods. In 1997, the team identified files of 21 foster children who were sexually abused during the test period.
Using simple math, the team estimated that 210 kids had been sexually abused while in the state's foster care from 1985 to 1995. That estimate, while possibly large enough to fuel a class-action lawsuit, amounts to less than 1 percent of all of Arizona's foster kids. The estimate is credible--the Child Welfare League of America, which gathers data on children, reports that less than 1 percent of children are molested while in foster care across the nation.
Yet CPS officials and their attorneys contend that the special master's estimate is highly exaggerated.
"That number is blown way out of proportion," says Jim Hart, assistant director of the DES division of Youth and Family Services, which oversees CPS.
"We went through and read every one of those cases," Hart says.
CPS officials say that out of the 21 cases, they found only 10 were "substantiated"--and two of the 10 cases, they say, were "child on child."
Berlin counters, "And so what's their point? That as you extrapolate and apply this data to the special master's report there are really only 80 children, not 210 children?
"If so, let's find the children and take care of them."
CPS also downplays a 1994 study conducted by the National Child Welfare Resource Center--commissioned and paid for by the state. The study looked at all cases in CPS's system on one day in 1993--4,152 files. The National Center turned up "allegations" that 81 foster kids in the system had been "severely" sexually abused.
In 1997, Judge Brown asked Hornby-Zeller Associates in Maine to review the National Center study and produce the names of children "who were sexually abused while in foster care."
Hornby-Zeller identified 11 more kids, for a total of 92 foster children.
Steve Lippman, then the state's attorney, disputed that the 92 kids had been sexually abused in foster care.
". . . it is expected that a significant number of the 92 indicated files will pertain to sex abuse which did not occur while the child was in State custody," Lippman wrote in a pleading. "It is expected the files will relate the reports of sex abuse received while the child was in State custody, but pertain to acts and events prior to the child being in custody."
The Hornby-Zeller findings were supposed to have been confirmed by the special master a year ago, but Judge Brown has yet to indicate he's received the report.
Because names and case files are still in the hands of the special master, there is no way to tell how many of Arizona's foster children were sexually abused from 1985 to the present.
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