Fostering Sexual Abuse

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Tommy's 1991 civil suit named Gary Arnold, CPS and his former foster parents, the Warrens. He claimed in court that Arnold and others should have protected Tommy from Darren by heeding advice of caseworker Miller and removing Tommy from a foster home that contained a suspected child molester.

In 1993, after the doctor admitted in a deposition that the anal scar might not have been caused by sodomy, the state settled Tommy's civil suit, paying him $237,500. The money came from the state's self-insurance program, which is funded by tax dollars.

Why did the state settle with Tommy after the doctor recanted her earlier testimony?

"I think there are two reasons," says Tommy's attorney, Larry Berlin. "One, because Tommy had been sexually abused and settling with him was the honest and righteous thing to do. Two, our discovery revealed that the DES supervisor [Arnold] had doctored records to protect himself and had refused to listen to his caseworker--at the child's expense."

When asked last month to comment on Tommy's case, John Wolfinger, an assistant attorney general who defended the state against Tommy, claimed that Tommy had "recanted" to his guardian and said he'd never been sodomized.

Tommy's court-appointed guardian, Tucson attorney Allan Bogutz, says Tommy never recanted to him.

Tommy did not respond to several requests for interviews for this story.

How Many Children?
Stephanie, Brittany and Tommy all were represented by Tucson lawyer Larry Berlin. According to records obtained from the Arizona Attorney General's Office and the state Department of Administration, Berlin's clients have been the only CPS foster-care kids who have obtained settlements from the state in the past five years. (Five other children claimed they'd been sexually abused in foster care, but their cases were dismissed. In one case, a foster father wrongly accused of molesting his foster daughters obtained a $1.5 million settlement from the state and his former defense attorney.)

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.

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Terry Greene Sterling