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.
The legal imbroglio places Arizona Attorney General Janet Napolitano in a delicate position. Much of her campaign centered on helping forgotten children, yet attorneys from her office are defending the state against the claims being filed by children.
"In my view," Napolitano says, "if the state has caused damages, we ought to reach an appropriate resolution and pay. But we also have an obligation not to pay without there being a level of proof.
"In the Bogutz case, there are a number of named clients, and each of those cases can be evaluated individually. . . . Going further and providing compensation for a large class is something else again, which is why we need the court to decide if we're talking about individuals or a broad class.
"My real concern," she concludes, "is if we have children who have been injured, let's take care of those kids."
CPS had received numerous complaints that Jason's mother, an alcoholic, had neglected and abused her three children.
Finally, a caseworker took decisive action in August 1990. Four-year-old Jason and his two older siblings were removed from their filthy Tucson apartment.
Concluding that Jason's mother was, for the moment, a lost cause, CPS called a family conference. Jason's aunts and grandmother and his then-teenage uncle Mike agreed the kids should be temporarily placed with a maternal aunt. But after a few months and the constant meddling of Jason's mom, the aunt returned the children to CPS.
Mike says the aunt failed to tell anyone else in the family that she was relinquishing the children--and Mike belatedly discovered that the 4-year-old was separated from his siblings and was being bounced from foster home to foster home.
In July 1991, when Jason was 5, CPS placed him in the foster home of John James, a divorced middle-aged schoolteacher with a heart condition. James had been a longtime foster father, but as early as 1986, according to CPS's own files, he was beginning to "burn out" on foster parenting. Nevertheless, there were six foster kids living with James when Jason arrived that summer. (The home was only licensed for four foster kids.)