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Case Name B.K. v. McKay CW-AZ-0002
Docket / Court 2:15-cv-00185 ( D. Ariz. )
State/Territory Arizona
Case Type(s) Child Welfare
Disability Rights-Pub. Accom.
Special Collection Post-WalMart decisions on class certification
Attorney Organization Children's Rights, Inc.
Case Summary
On February 3, 2015, minors in the custody of the Arizona foster care system filed this lawsuit in the United States District Court for the District of Arizona. The plaintiffs sued the Arizona Department of Child Safety, the Arizona Department of Health Services, and the Arizona Health Care Cost ... read more >
On February 3, 2015, minors in the custody of the Arizona foster care system filed this lawsuit in the United States District Court for the District of Arizona. The plaintiffs sued the Arizona Department of Child Safety, the Arizona Department of Health Services, and the Arizona Health Care Cost Containment System under 42 U.S.C. § 1983 and Title XIX of the Social Security Act (42 U.S.C. § 1396). The plaintiffs, represented by Children’s Rights, Inc., the Arizona Center for Law in the Public Interest, and private counsel, sought class certification and both declaratory and injunctive relief. The plaintiffs claimed that the defendants had violated their First, Ninth, and Fourteenth Amendment rights, and provisions of the Medicaid Act. Specifically, the plaintiffs claimed that certain child welfare policies and practices exposed them to physical and emotional harm and unreasonable risk of harm while in the State’s care.

Over the past several years, Arizona had experienced a dramatic increase in the number of children in state foster care, nearly doubling from 2003 to 2012. The plaintiffs alleged that this growth had been fueled by extensive state budget cuts to important support services that had previously helped keep families together. The plaintiffs alleged that these cuts resulted in problematic policies and institutional issues in Arizona, including: a severe shortage of physical, mental, and behavioral health services available to children in state care; a widespread failure to conduct timely investigations of reports that children have been maltreated while in state custody; and severe and sustained shortage of family foster homes. Allegedly, there was also a widespread failure to engage in basic child welfare practices aimed at maintaining family relationships, such as placing siblings together, placing children with their biological parents on a trial reunification basis, coordinating visits between children and their biological families, and having caseworkers make regular visits with the children’s biological parents to monitor progress toward family reunification. Due to these problems, children were frequently placed far from their home communities, forced to change schools, separated from their siblings, and did not receive the mental and physical health care that they required.

On September 29, 2015, Judge Roslyn O. Silver denied the defendants’ motion to abstain and dismiss due to lack of subject matter jurisdiction. 156 F. Supp. 3d 1024. On May 13, 2016, the Court ordered that one of the three next of friends (in this case, a person who represents a minor unable to maintain a lawsuit on his or her own behalf) be dismissed because they were ineligible to be a next friend. 2016 WL 8200450.

After two years of continuous discovery disputes and scheduling delays, Judge Roslyn O. Silver granted class certification for the plaintiffs on September 30, 2017. The class was defined in three parts as:

"General Class: All children who are or will be in the legal custody of DCS due to a report or suspicion of abuse or neglect. Non-Kinship Subclass: All members in the General Class who are not placed in the care of an adult relative or person who has a significant relationship with the child. Medicaid Subclass: All members of the General Class who are entitled to early and periodic screening, diagnostic, and treatment services under the federal Medicaid statute."

The defendants appealed to the United States Court of Appeals for the Ninth Circuit, and on December 19, 2017, the Ninth Circuit granted the right to appeal the class certification issued on September 30, 2017.

On January 3, 2018, the defendants moved to stay further action in the case while the class action appeal was decided by the Ninth Circuit. The defendants argued that the District Court proceedings should be stayed because discovery for the class action was time intensive and expensive, and the deadlines for dispositive motions in the District Court conflicted with deadlines in the Court of Appeals. The plaintiffs argued that an indefinite stay would cause irreparable harm to children in foster care.

On February 13, 2018, Judge Silver denied without prejudice the defendants’ motion to stay, finding that the defendants were unlikely to succeed on the merits. However, on February 27, 2018, the Ninth Circuit Court of Appeals granted a motion to stay pending the decision on the class certification.

On June 4, 2018, one of the plaintiffs filed a handwritten motion for leave to file a supplemental complaint, requesting the certification of an additional subclass called “Plaintiffs with Mental Illnesses,” of which he would be a member. Judge Silver denied this motion on September 24, 2018, since a class certification appeal was still pending before the Ninth Circuit.

The Ninth Circuit released its decision on April 26, 2019, affirming two of the certified subclasses and vacating and remanding one. The Ninth Circuit affirmed the General Class and the Non-Kinship Subclass, but vacated and remanded the Medicaid Subclass, finding that the district court failed to make a finding that each member of the class was subject to identical future significant risk of Medicaid violations that would support injunctive relief. 922 F.3d 957.

The parties agreed that the plaintiffs would recertify the Medicaid class and that additional discovery would be needed. On July 31, 2019, the plaintiffs thereafter filed a motion for class recertification, and on August 9, 2019, Judge Silver ordered the defendants to pay the costs of additional discovery, which were projected to range from $135,000-$150,000.

On October 11, 2019, Judge Silver granted the plaintiffs’ motion to recertify the Medicaid subclass.

After this final subclass was created, the defendants in the initial action filed a petition for a writ of certiorari with the U.S. Supreme Court on December 12, 2019. They contested the Ninth Circuit's decision to certify the class and most of the subclasses, stating that the classes, as written, did not have similar injuries across all members of the class. They contested the Ninth Circuit's Parsons v. Ryan decision, the basis for upholding the classes at issue here, that certified a class with disparate injuries because the injuries were caused by the same statewide policy, and urged the Supreme Court to overturn it. The Supreme Court denied the petition on March 20, 2020.

The case, with all of its classes and subclasses, continues.

Katrina Fetsch - 04/16/2016
Mary Kate Sickel - 02/13/2018
Elizabeth Helpling - 10/16/2019
Ellen Aldin - 05/25/2020

compress summary

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Issues and Causes of Action
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Benefit Source
Constitutional Clause
Due Process
Classification / placement
Emergency shelter
Failure to supervise
Family abuse and neglect
Family reunification
Foster care (benefits, training)
Neglect by staff
Parents (visitation, involvement)
Pattern or Practice
Placement in shelters
Relative caretakers
Siblings (visitation, placement)
Staff (number, training, qualifications, wages)
Suicide prevention
Totality of conditions
Youth / Adult separation
Medical/Mental Health
Dental care
Medical care, general
Mental health care, general
Self-injurious behaviors
Suicide prevention
Mental Disability
Mental Illness, Unspecified
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Medicaid, 42 U.S.C §1396 (Title XIX of the Social Security Act)
Defendant(s) Arizona
Plaintiff Description Children who are or will be placed in Arizona state foster care custody following reports that they have suffered child abuse or neglect.
Indexed Lawyer Organizations Children's Rights, Inc.
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 02/03/2015
Case Ongoing Yes
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

Court Docket(s)
D. Ariz.
CW-AZ-0002-9001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Ariz.
Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 1]
CW-AZ-0002-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
Second Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 37]
CW-AZ-0002-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
Order [ECF# 51] (156 F.Supp.3d 1024)
CW-AZ-0002-0002.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
Order [ECF# 363]
CW-AZ-0002-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Opinion [Ct. of App. ECF# 418] (922 F.3d 957)
CW-AZ-0002-0005.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
Plaintiffs' Motion and Memorandum of Points and Authorities in Support of Certification of the Medicaid Subclass [ECF# 430]
CW-AZ-0002-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
Order [ECF# 461] (411 F.Supp.3d 462)
CW-AZ-0002-0007.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Adelman, Lynn S. (E.D. Wis.) show/hide docs
Silver [Moore-Silver], Roslyn O. (D. Ariz.) show/hide docs
CW-AZ-0002-0002 | CW-AZ-0002-0004 | CW-AZ-0002-0007 | CW-AZ-0002-9001
Wallace, John Clifford (S.D. Cal., Ninth Circuit) show/hide docs
Plaintiff's Lawyers Adelman, Daniel Jay (Arizona) show/hide docs
CW-AZ-0002-0006 | CW-AZ-0002-9001
Barber, Philip (New York) show/hide docs
Beauchamp, Keith (Arizona) show/hide docs
CW-AZ-0002-0001 | CW-AZ-0002-9001
Davis, Julia L. (New York) show/hide docs
CW-AZ-0002-0001 | CW-AZ-0002-0003 | CW-AZ-0002-9001
Desai, Roopali H. (Arizona) show/hide docs
CW-AZ-0002-0001 | CW-AZ-0002-9001
Dixon, Stephen (New York) show/hide docs
Finch, Aaron Hirsh (New York) show/hide docs
CW-AZ-0002-0006 | CW-AZ-0002-9001
Frischer, Harry (New York) show/hide docs
Gerard, Daniele (New York) show/hide docs
Hogan, Timothy Michael (Arizona) show/hide docs
CW-AZ-0002-0001 | CW-AZ-0002-0003 | CW-AZ-0002-9001
Kapell, William (New York) show/hide docs
CW-AZ-0002-0001 | CW-AZ-0002-0003 | CW-AZ-0002-9001
Luciano, Adriana Teresa (New York) show/hide docs
CW-AZ-0002-0003 | CW-AZ-0002-9001
Lustbader, Ira P. (New York) show/hide docs
Mais, Joseph E. (Arizona) show/hide docs
CW-AZ-0002-0003 | CW-AZ-0002-0006 | CW-AZ-0002-9001
McGuinness, Erin Geloff (New York) show/hide docs
Nili, Rachel Brodin (New York) show/hide docs
CW-AZ-0002-0003 | CW-AZ-0002-9001
Persson, Stephanie (New York) show/hide docs
Ronan, Anne (Arizona) show/hide docs
CW-AZ-0002-0001 | CW-AZ-0002-0003 | CW-AZ-0002-9001
Swindle, Shane R. (Arizona) show/hide docs
CW-AZ-0002-0003 | CW-AZ-0002-9001
Tolman, Shelley (Arizona) show/hide docs
CW-AZ-0002-0001 | CW-AZ-0002-9001
Wood, Kathryn Anne (New York) show/hide docs
Defendant's Lawyers Acedo, Nicholas Daniel (Arizona) show/hide docs
Albracht-Crogan, Cynthia Christine (Arizona) show/hide docs
Bojanowski, Timothy J (Arizona) show/hide docs
Ellman, Robert Lawrence (Arizona) show/hide docs
CW-AZ-0002-0006 | CW-AZ-0002-9001
Giallonardo, Dana M. (Arizona) show/hide docs
Gottlieb, Stacey Faith (Arizona) show/hide docs
Harrison, Wendy J. (Arizona) show/hide docs
Hartzman-Tellez, Karen J (Arizona) show/hide docs
Johnston, Logan T. (Arizona) show/hide docs
CW-AZ-0002-0006 | CW-AZ-0002-9001
Keene, Dana M (Arizona) show/hide docs
Koloseike, Lauren Marie (Arizona) show/hide docs
LaPrade, Lauren Marie (Arizona) show/hide docs
Lento, Gary N. (Arizona) show/hide docs
McBride, Melanie Grace (Arizona) show/hide docs
Plumb, Catherine Dodd (Arizona) show/hide docs
CW-AZ-0002-0006 | CW-AZ-0002-9001
Quigley, Daniel P. (Arizona) show/hide docs
CW-AZ-0002-0006 | CW-AZ-0002-9001
Struck, Daniel Patrick (Arizona) show/hide docs
CW-AZ-0002-0006 | CW-AZ-0002-9001
Stuart, John Neil (Arizona) show/hide docs
Weinzweig, David Daniel (Arizona) show/hide docs
Wieneke, Kathleen L (Arizona) show/hide docs
Zimmerman, Joshua Robert (Arizona) show/hide docs
Zoellner, Tara B. (Arizona) show/hide docs
Other Lawyers Covington, Jill M (Arizona) show/hide docs
Porter, Camilla June (Arizona) show/hide docs

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