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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. 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 federal 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. 2015 WL 9690914. On May 13, 2016, the Court ordered that one of the three next of friends (a person who represents a minor - in this case - who is unable to maintain a lawsuit on his or her own behalf) be dismissed. The defendants had argued that the three individuals were not appropriate candidates to be next of friends. 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 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
The defendants appealed to the United States Court of Appeals 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 argue 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. Plaintiffs argued that an indefinite stay would cause irreparable harm to children in foster care.

As of February 12, 2018, discovery is ongoing in the District Court.

Katrina Fetsch - 04/16/2016
Mary Kate Sickel - 02/13/2018

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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)
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
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
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 granted Yes
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 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 ]

2:15-cv-00185-ROS (D. Ariz.)
CW-AZ-0002-9001.pdf | Detail
Date: 11/01/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 1]
CW-AZ-0002-0001.pdf | Detail
Date: 02/03/2015
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 37]
CW-AZ-0002-0003.pdf | Detail
Date: 06/08/2015
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 51] (2015 WL 9690914) (D. Ariz.)
CW-AZ-0002-0002.pdf | WESTLAW | Detail
Date: 09/29/2015
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 363] (D. Ariz.)
CW-AZ-0002-0004.pdf | Detail
Date: 09/29/2017
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Silver [Moore-Silver], Roslyn O. (D. Ariz.) show/hide docs
CW-AZ-0002-0002 | CW-AZ-0002-0004 | CW-AZ-0002-9001
Plaintiff's Lawyers Adelman, Daniel Jay (Arizona) show/hide docs
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
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
Mais, Joseph E. (Arizona) show/hide docs
CW-AZ-0002-0003 | 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
Giallonardo, Dana M. (Arizona) show/hide docs
Gottlieb, Stacey Faith (Arizona) show/hide docs
Harrison, Wendy J. (Arizona) show/hide docs
Johnston, Logan T. (Arizona) show/hide docs
Koloseike, 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
Quigley, Daniel P. (Arizona) show/hide docs
Struck, Daniel Patrick (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 Porter, Camilla June (Arizona) show/hide docs

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