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A seven-year battle between an Arizona attorney and state officials over allegedly sexually abused foster children has come to a head in a special petition seeking the state supreme court’s grant of certiorari of a class action. The case before the Arizona Supreme Court is on behalf of four children and seeks class certification for about 300 more. They were allegedly sexually molested while in the state’s foster care system, but their names aren’t known to the plaintiffs’ attorney or the guardian ad litem bringing the suit. The plaintiffs’ attorney said that the number and identities of the children were discovered as a result of a court-ordered analysis of the state’s foster care system. Bogutz v. Superior Court of State of Arizona, No. CV-00-0260-SA. AN UNJUST SACRIFICE? Laurence Berlin, a Tucson-based sole practitioner who focuses on personal injury, represents the children and the guardian ad litem, attorney Allan Bogutz of Tucson’s Bogutz & Gordon. Berlin said a trial court’s denial of certification of class action, and its refusal to provide notification to the children believed to be a part of the class, violate the court’s responsibility toward the children under state and federal law concerning minors. He also contends that the ruling will result in the unjust sacrifice of the children’s legal rights to sue as a result of the tolling of the statute of limitations. The case is one of first impression in its application of Arizona Civil Rule 17(g), Arizona’s version of Federal Rule 17(c), Berlin said. The rule asserts that it is the duty of the courts to protect the rights of an injured child brought before them. “If the supreme court grants review, there will probably be a clear determination of whether their rights will be guarded or extinguished, and whether the state will succeed in just sweeping these children under the rug,” said Berlin. Arizona Superior Court Judge Michael Brown denied certification for the class action earlier this year. The judge also denied notification of the allegedly abused children of the status of the suit. The denial of class certification removes the shield stopping the tolling of the statute of limitations, which means many of the children will lose their right to sue if they are not notified. But attorneys for the state assert that neither the number of allegedly sexually abused children nor their identities were ever determined. The attorney for the state, Daryl Manhart, a partner at Burch & Cracchiolo in Phoenix, called Berlin’s suit a fishing expedition to drum up more clients. Manhart also asserted that Berlin “is attempting to use Rule 17(g) to allow unidentified parties in the case to take up special interests.” As a result of court-ordered discovery into the state’s records on sexually abused children in foster homes — sparked by the suit filed by Berlin — the plaintiffs allege that 92 abused children were specifically identified to the court by the National Child Welfare Resource Center. A special master appointed to the case identified 21 children who had been molested while in foster homes. Berlin said that 200 more children could be identified by the special master. But Flora Sotomayor, program administrator for Arizona child protective services, contended that the number of children sexually abused in state-provided foster homes is much lower. PRIOR ABUSE Sotomayor said state reports showing sexual abuse include abuse that the children experienced in their foster-care home assignments. But the reports lumped abuse in foster homes with abuse that happened earlier and was reported during foster home stays, she said. The state’s attorneys said in their brief, “The numbers reflect computer cullings of children who possibly may have been sexually abused while in foster care (which does not mean it was due to any act or omission of the State) and speculation of the number of such children who might be found by an examination of the records of all of the children who have ever been in foster care.”

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