Supreme Court Hears Key Adoption Case for Arizona

The U.S. Supreme Court heard an important adoption case on April 16. The case, captioned Adoptive Couple v. Baby Girl, involves complex issues of sovereignty and statutory construction, to say nothing of the high stakes element of a little girl’s permanent placement.

In 2009, a South Carolina couple took custody of a newborn girl after her mother agreed to let them adopt her. The girl’s biological father objected to the adoption on the grounds that the mother had not consulted with him before making the arrangements.

Supreme Court (Woodnick)Under typical circumstances in South Carolina (and in many other states), the father’s consent would not have been necessary because he was not married to the mother and was considered an absentee. A 1978 federal law entitled the Indian Child Welfare Act, however, provided a strong enough legal ground for the state to award custody to the biological father in December, 2011.

The Indian Child Welfare Act (ICWA) was passed to address what was described as an “alarmingly high” rate of removal of children from Native American families. The law requires inclusion of the family’s tribe in proceedings to determine child custody, including adoptions. Under ICWA, the “biological parent or parents of an Indian child” cannot have their parental rights involuntarily terminated without notice, hearing, and proper showing that continued custody of the child by the parent or custodian “is likely to result in serious emotional or physical damage to the child.” Such notice must also be given to the child’s tribe so that the tribal courts can engage in determining the child’s placement.

If such a showing is made and the court terminates a parent’s rights, ICWA requires the court to give preference to the child’s extended family, other members of the child’s tribe, or to “other Indian families” when placing the child.

In the case at bar, the Supreme Court must decide if (and how) ICWA applies to the girl’s biological father, with whom she will have spent about 18 months by the time a decision is reached. No matter the result, one of two families will be devastated. Broader concerns with the case involve the potential limitation of ICWA, prompting several states, tribal councils, and others to file numerous amicus briefs.

Saguaro (Woodnick)The State of Arizona and the Inter Tribal Council of Arizona have each filed briefs in support of ICWA. Arizona is home to the nation’s third-largest population of Native Americans at around 155,000 people; if ICWA is overturned, the impact on Arizona would be disproportionately large. Legal commentators speculate that the Supreme Court’s high rate of reversal indicates the Justices’ intent to do away with outcomes like these under ICWA, but the form that such reversal might take is in doubt.

Adoptions are complicated endeavors which sometimes lead to tragic outcomes. ICWA is designed to respect tribal sovereignty and to protect the cultural heritage of Native American children whose unique situation makes them more vulnerable. At times, however, statutes have unintended consequences that can lead to termination of the rights of both biological and adoptive parents. Adopting a child in Arizona is a complicated process (and not only because of tribal law issues), so both Arizona adoption lawyers and prospective adoptive parents must exercise due care and caution.

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False Imprisonment Claim Yields $70,000 Settlement in New Mexico

ABC News reports that a New Mexico man agreed to a $70,000 settlement with the county whose officials arrested and wrongfully imprisoned him for several days in 2009. Anthony Ortiz was arrested because a clerk entered his Social Security number onto an arrest warrant for another man of the same name. The clerk found Mr. Ortiz’s SSN on an emergency 911 call log, but failed to determine whether the Anthony Ortiz listed in the log was the same person as the man whose name appeared on the arrest warrant.

Barbed Wire Fence (Woodnick)This unfortunate case illustrates a few key points about our legal system and steps that everyone should take to protect themselves in the event of a misunderstanding.

  1. Information used by police officers is sometimes inaccurate. In Arizona, efforts have been made to unify the databases that law enforcement agencies use to store and transmit information about people. The Arizona Department of Public Safety (DPS) collects and stores information about arrests, warrants, fingerprints (via the Automated Fingerprint Identification System – a subject we covered here), and other information. The Arizona Judicial Branch maintains a similar service for court cases throughout the state (you can find Arizona cases at azcourts.gov).Although the state has made progress toward ensuring that public officers have access to all of the information they need, the unfortunate reality is that these databases are incomplete. A judgment in the Glendale Municipal Court, for example, may not be reported to the Judicial Branch so that the Superior Court can easily find it. There may be no Maricopa County record of an arrest made in Coconino County, even if the person was fingerprinted. These holes in the records can present problems for police officers, judges, CPS workers, and others because important information may be left out of their decision-making processes.

    In rare cases, they may even lead to mistaken identities and false arrests like the one New Mexico. Conversely, incomplete records may lead police officers to believe that a person has no criminal record warranting arrest (like a past domestic violence conviction, for example) and respond inappropriately to an emergency call by their potential victim.

  2. Failure to carry a photo ID can have negative consequences. It is always in your best interest to carry a photo ID. If a police officers reasonably suspects that you have violated the law, he or she may detain you temporarily in order to ascertain your identity and to investigate the crime that they believe you may have committed (or are about to commit). Although Arizona’s “stop and identify” statute, A.R.S. § 13-2412, requires only that you state your full name, a photo ID can quickly and easily resolve the situation without unnecessary conflict with the officer. Other laws, such as the infamous SB 1070, may require officers to inquire further about your identity and legal status. Although not directly at issue in the New Mexico case, the importance of carrying an ID cannot be understated in the context of misidentification.
  3. Protect your Social Security number. Among the many mistakes that the New Mexico clerk made, matching a Social Security number to a name on an arrest warrant without any further verification was particularly egregious. Although this may sound like the prologue to a Mel Gibson film or an excerpt from Orwell’s 1984, each time that you give your Social Security number can lead to identity theft, mistaken identity, or some related problem.

Data (Woodnick)Use care to ensure that you always ask questions when anyone, including public officials, ask for your SSN. Ask why they need it, whether it will be stored (and how it will be protected), and whether there are any consequences for refusing to comply. For Anthony Ortiz, giving his SSN to an officer during a response to a 911 call probably seemed harmless, but improper handling of the information ultimately led to his wrongful imprisonment.

Another lesson to be learned (or re-learned if you follow this blog) from Mr. Ortiz’s unfortunate case is that you have legally protected rights which can be vindicated in the event of violation. Anthony Ortiz consulted with a lawyer and received a $70,000 settlement for the injury to his personal liberty and security.

Although it may seem as though no harm was done – after all, Mr. Ortiz was released after a few days – the impact of improper behavior by state officials should be understated. False imprisonment, malicious prosecution, prosecutorial misconduct, and other wrongs are unfortunately common. It is the duty of citizens and the province of attorneys to guard against abuse by standing up for individual rights.

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The Importance of Expert Witnesses

If the Jodi Arias trial illustrates anything to the legal community (note: it probably illustrates a lot of things), it is the importance of expert witness testimony in the contemporary trial setting.  Forensic psychologist Richard Samuels told jurors that Jodi Arias suffers from “dissociative amnesia” which caused her to misremember and forget details of the night on which she murdered Travis Alexander.  On cross-examination, Samuels and prosecutor Juan Martinez have engaged in a series of heated exchanges which may have irreparably damaged the expert’s credibility before the jury.

Many trial lawyers depend on expert witness testimony to bolster arguments, to educate judges and jurors about contested issues, to frame novel litigation strategies, and for many other purposes.  In some cases, such as medical malpractice, there may even be a statutory requirement that a qualified expert testify in order for your claim to succeed.  Unfortunately, not all expert witnesses are equal, and both the client and the attorney must exercise care when retaining an expert to testify at trial.

Door (Woodnick)Consider the following scenario and some of the challenges it presents:

Imagine that you are embroiled in a custody dispute and must prove to the court that your ex-spouse is no longer a fit parent.  Your ex suffered a head injury at work about a year before the case began.  You believe that the head injury is to blame for your ex becoming more prone to risky behaviors that endanger your children during visits.

Through the discovery process, you obtained a court order for your ex to undergo a physical examination, complete with brain scans, along with a mental examination performed by a psychologist.  Now, you have a pile of reports that you, your attorney, and a private consultant have carefully examined.

The neurologist’s report reveals a brain injury, but she was unwilling to conclude that the injury could lead to reduced inhibition and increased risk-taking.  Notably, the neurologist only read the scans and did not personally examine your ex. Alternatively, the neuropsychologist’s report includes observations which corroborate your allegation that your ex has grown more aggressive and takes some unnecessary risks, but the psychologist blamed the change in behavior on temporary occupational stress caused by your ex’s recent return to work and not on any physical injury.

Neither professional made any recommendation as to whether their findings necessitate a change in the custody arrangements because that issue goes beyond the scopes of their respective fields of expertise.  Furthermore, neither of these medical professionals has experience testifying as an expert witness.

You and your attorney believe that expert testimony is critical to your case, and you have three major options: (1) retain the neurologist, (2) retain the neuropsychologist, (3) engage another expert.

Choosing the right expert.

Although this is the most basic hurdle to leap when preparing to use an expert witness, it can be a tough decision.

Option 1, the neurologist, could speak to the nature and duration of the injury and its presumptive effects on behavior.  Choosing this expert would provide a strong medical platform from which to base the rest of your argument, but would require the judge to infer a great deal about the effects that the injury might have on your children because the neurologist’s knowledge only extends to the brain scans.  Also, because the neurologist lacks experience testifying in court, she may use indecipherable technical language or become flustered on the stand.

Spine (Woodnick)Option 2, the psychologist, can testify about the behaviors he observed, but likely will not link those behaviors to the brain injury.  This expert would help to solidify the link between your ex’s behavior and the danger to your children, but his testimony does not support a finding that the danger is a long-term (and possibly permanent) result of the head injury.  Again, the psychologist’s inexperience in court may nullify the persuasiveness of his testimony if he contradicts himself upon cross-examination.

Option 3, the wild card, could include any number of experts from other disciplines:  a behavioral health specialist, a childcare expert, a social worker, etc.  This expert would likely have experience testifying in front of a judge and could be hand-selected with a background that can link all of the evidence together to strengthen your case.  This expert did not personally examine your ex, however, which may reduce the directness (and persuasiveness) of his or her contentions in court.

Choosing whether to focus on the physical medicine, the psychology, or attempting to encompass all of the evidence within one expert’s breadth of knowledge is fraught with potential weaknesses.  Granted, there is always the possibility of retaining all three (or more) witnesses, but a parade of experts will probably annoy the judge and will almost certainly cost thousands of dollars with no guarantee of success.

What should I do? How important is an expert?

Like in the Jodi Arias trial, where Richard Samuels’s testimony is likely necessary to persuade the jury to understand the inconsistencies in the defendant’s recollections, expert witnesses can make or break any case.  The importance of an expert witness cannot be understated (with the caveat that a bad expert is just as likely to destroy your claim as a great expert is to strengthen it).

If you are faced with the need to choose an expert witness, the first step might be to consult with another expert.  With your permission, your attorney can discuss the facts of your case with an expert consultant who will read the files, examine the medical and vocational reports, and make recommendations.  Deciding whether to retain a neurologist, a neuropsychologist, a forensic psychologist, a neuroendocrinologist, a psychiatrist, or some other expert is much easier after a consultant explains the nuances of each field and the testimony that each expert can provide.  The nature and scope of your claim may or may not lend itself well to the use of expert testimony, so knowing whether a particular type of expert will be helpful is an important initial step.

Next, consider the experience, knowledge, and qualifications of possible experts.  An expert with an impressive academic resume may seem like a good choice, but a lack of field experience might lead to weakened testimony about the specific facts in your case.  On the other hand, an expert with a great deal of experience may have too narrow a view of emerging practices and research in his or her discipline.

A witness with courtroom experience is often a good choice, but consider the first few questions typically asked of an expert witness on cross-examination: “Have you ever testified as an expert witness before?  How many times?  Do you always testify for plaintiffs?  How much are you being paid for your services?”  A jury and a judge may reject the testimony of a career expert witness as too canned.

In a criminal case or child custody hearing with allegations of abuse, your outcome may rely heavily on the experts that testify.  These professionals are educating the judge or jury and may be the most persuasive evidence presented for your claim.  There is no “one-size-fits-all” psychologist, physician, or other medical expert for all situations.  Finding the right expert means the difference between success and failure.

Calculator (Woodnick)Parenthetically, we wrote this article while working on a case involving an allegation of child abuse.  A physician in Arizona opined that a red mark on the child was the result of non-accidental trauma. Before spending money on a pediatrician to refute the allegations, we consulted with a medical consultant, Marc Bernstein, M.D. of Medical Intelligence Consultants, LLC.  Dr. Bernstein, a specialist in expert medical testimony in Arizona, suggested that we consult with an allergist who specialized in pediatric immunotherapy.

The allergist provided the direct expert opinion we needed to demonstrate that the red mark was the result of an allergic reaction.  The right expert made all of the difference.

Posted in Brad TenBrook, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , | 1 Comment

Arizona DUI Laws and Medical Marijuana

In Washington, marijuana is legal for both medical and recreational uses.  As a result of its voters legalizing the substance, the state is now undertaking the task of adopting new standards for regulating marijuana.  Washington decided to propose a standard more closely in line with that in force for other substances, such as alcohol.

Driving (Woodnick)One such regulation, Initiative 502, made national headlines in late 2012 because it sets an objective impairment standard: tetrahydrocannabinol (THC) content of greater than 5 nanograms per milliliter in a driver’s blood triggers Washington’s anti-DUI laws, with or without a medical use card.  I-502 has been the subject of controversy since its adoption because of the alleged dubiousness of the 5 nanogram threshold.  Although difficult, establishing a uniform objective standard for impairment should be a high priority for many states as drugs which significantly alter their user’s mental state become more widely accepted and legalized.

In contrast, Arizona, which approved medical marijuana in 2010, does not enforce a blood-content limitation in its DUI laws.  The Arizona standard, codified at A.R.S. § 28-1381, only specifically lists blood alcohol content as a factor in determining whether a driver was impaired by alcohol while driving.  Marijuana falls into the category of “any drug” and driving while impaired “to the slightest degree” is enough to violate the statute.  This is a more hardline approach and, although it appears to be objective, actually relies on law enforcement’s subjective analysis of the driver, at least at initial contact.

Police officers are trained to identify impairment using standardized tests, but the well-established .08 blood alcohol concentration (BAC) limitation for non-commercial driving is the most irrefutable (and usually error-free) form of evidence that the state uses to prove DUI violations.  A driver who is arrested and whose BAC is at or above .08 grams per 100 milliliters of blood is presumed guilty of driving under the influence as long as the blood test was performed in accordance with legal guidelines.  A driver could still be convicted of a DUI without a .08 BAC, however, with a strong enough showing of evidence of impairment.

Old Police Car (Woodnick)For medical marijuana users, no such presumption exists because Arizona has not adopted a fixed standard for acceptable concentrations of active THC in the blood.  Even if a standard were to be adopted, similar to the one in Washington, it remains unclear how much marijuana is enough to reach 5 nanograms per milliliter or how long the impairment will last, to say nothing of the wisdom of the 5-nanogram cutoff, itself.

As with anyone who imbibes a reasonable amount of alcohol and wishes to drive, medical marijuana users should be careful and plan ahead.  If you need to be somewhere soon after using medical marijuana, and even though you don’t feel you’re too impaired to drive, remember that in Arizona that determination is made by the arresting officer.  Even if you are capable of operating your vehicle safely, a minor traffic infraction – a faulty headlight or failing to signal a lane change, for example – could result in a DUI arrest.

Just as hard liquor contains more alcohol than beer, some strains of medical marijuana are more potent than others.  Even using the same marijuana on different days could result in different levels of impairment based on countless variables.  Your medical marijuana card will protect you from the per se violation of having metabolites in your bloodstream, but it will not protect you from DUI if you are pulled over and subsequently arrested.

Posted in Brad TenBrook, Drug Charges, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , | 1 Comment

Regulatory Issues in Arizona Residential Treatment Centers

On February 19, The Arizona Republic/azcentral.com published its third entry in a multi-part investigative report into Arizona’s regulation of residential treatment centers for at-risk youth.  Reporters launched the investigation last year in order to determine whether Arizona is meeting its duties to regulate the safety of young people placed in residential treatment facilities.

The results of the report are shocking.  According to The Republic, the Arizona Department of Health Services (ADHS) and Administrative Office of the Courts (AOC) routinely collect data about the day-to-day operations of Arizona’s eleven Level 1 residential treatment facilities.  Unfortunately, the regulatory agencies almost never share the data that they collect with one another, let alone other agencies or the public, and records are destroyed after one year.

Clouds (Woodnick)The Republic gathered 2,100 incident reports; such reports are submitted almost daily and are required if a specific allegation of abuse or other health and safety issue comes to the facility administrator’s attention.  The reporters’ review of these documents revealed that the ADHS and AOC had not made any “substantial corrective actions” even after dozens of reports of sexual abuse and hundreds of reports of physical mistreatment were submitted for their review.

In fact, The Republic discovered only two cases in three years of records in which the ADHS sanctioned facilities, resulting in a grand total of $1,150 in fines.  Many of the most extreme allegations, like sexual misconduct by adult staff, were never fully investigated because the staffers were fired or left their jobs before the agency took action.

And those are just the reported incidents: one facility in Prescott Valley failed to report incidents of staff sexual abuse and sex with underage clients to the AOC in spite of regulatory requirements that they file such reports with both agencies within a day of their allegation.

The purpose of residential treatment centers is to provide a safe place for at-risk children to receive the help that they need to recover.  Courts often assign children to these facilities if they are convicted of crimes so that they can continue to receive an education while being treated and rehabilitated.

Hallway (Woodnick)Because juvenile offenses are often related to mental health disorders or abuse at home, at school, or elsewhere, many of these young people are at a high risk for being re-victimized.  Placing them in a facility which is questionably regulated could subject vulnerable children to further abuse which can only amplify the conditions and circumstances which already plagued them.

If your child is accused of a criminal defense, their rights must be protected.  Juvenile defense attorneys specialize in handling the unique issues of cases involving young people, but every case requires a new approach.  As more information emerges about the regulation (or lack thereof) of Arizona’s residential treatment centers, legal strategies to secure the best outcomes for juvenile offenders will change.  Although children who are accused of committing crimes often need specialized treatment, a court-assigned RTC may not be the best way to help them.

Posted in Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Juvenile Court, Leslie A. Satterlee | Tagged , , , | Leave a comment

Outcry Over Russian Adoptee’s Texas Death

On February 18, CNN reported that Russian officials are outraged after the death of Max Shatto, a Russian boy living with his adoptive family in Texas.  Texas Child Protective Services is investigating the boy’s death, citing the suspiciousness of his injuries revealed in preliminary reports from the medical examiner.

Konstantin Dolgov, special representative for human rights at Russia’s Foreign Ministry, believes that the three-year-old boy’s death is “another case of inhuman abuse of a Russian child by U.S. adoptive parents.”

Snow (Woodnick)Russian lawmakers recently passed a moratorium on the adoption of Russian children by U.S. citizens which is scheduled to begin in January, 2014.  President Obama recently signed a law which restricts the travel and financial flexibility of human rights abusers in the U.S. – Russia’s ban on adoptions is viewed by many as a retaliatory measure.

What does all of this mean for Arizonans?  According to the U.S. State Department (via CNN), around 1,000 Russian children were adopted last year by U.S. citizens, making Russia the third-most popular foreign nation from which U.S. families adopt.

Russia’s outrage at 19 reported deaths of Russian adoptees since 1990 is mostly a political issue, but many families have pending adoptions which could be blocked by the change to Russian law, likely resulting in the loss of thousands of dollars of expenses already paid toward securing an adoption abroad.

To make matters worse, Russian authorities are calling for the criminal prosecution of Max’s parents and the immediate removal of Max’s younger brother, Kirill, from the family’s custody and his return to Russia.  Texas CPS officials are monitoring Kirill’s safety, but are waiting for final autopsy and toxicology reports before moving further.

If Russian commentators’ contentions that Max was beaten, drugged, or otherwise neglected hold true, it is unclear whether Kirill can (or should) be returned to Russia, where he previously lived in an orphanage.

Political Dolls (Woodnick)In any adoption, there can be unforeseen legal pitfalls.  Foreign adoptions, in particular, could become subject to the diplomatic meanderings of the day.  Although the 19 deaths of Russian adopted children in the U.S. since 1990 are each tragic whether they involved foul play or not, there have also been over 60,000 successful adoptions in the same period.  Extreme measures like Russia’s total ban could result in thousands of children and families not being matched – a scenario in which everyone loses.

Furthermore, the national headlines attached to this case can cause the public to associate adoptive families with negative stigmas (that adoptive parents are more likely to abuse their children, for example).  Such stigma could result in more calls to CPS and civil and criminal actions being brought against perfectly fit parents.  All of these phenomena will likely continue to drive up the already extreme cost to adopt a child as agencies seek to tighten their standards for selecting parents and parents are forced to parry legal matters which arrive as a result of heightened scrutiny into their personal lives.

If the Shattos abused Max, then sanctions are certainly appropriate.  The extremity of national and international reactions to this case, however, could result in more harm being done to children without homes and fit families who would offer them a better life.

For more insight into the potential pitfalls of foreign adoptions, click the following link: http://woodnicklawchildcustody.wordpress.com/2011/08/11/foreign-adoption-a-tragic-ending-to-a-happy-story-2/

Posted in Adoption, Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , | 3 Comments

Suspected Non-accidental Trauma: Femoral Shaft Fractures

Imagine the following:

You are the parent of two boys, ages 12 and 2.  Your children get along well – the 12-year-old recently helped you wean the little one off of bottles and takes pride in teaching his brother new things.  “Follow the Leader” has been one of the pair’s favorite games since the youngest learned to walk, and your five-acre property in Peoria provides ample space for the boys to play.  Bumps and bruises are common occurrences, and you keep the medicine cabinet well-stocked with bandages and antibiotic ointment.

Emergency Room (Woodnick)One day, during a particularly intrepid session, the 12-year-old guides the younger boy through the grass, over the lawn tractor, and into the part of the yard where your horse trailer is stored when not in use.  Because of your own recent injury – a car accident has left you unable to work for two years and the children are insured through KidsCare as a result of your low income – the yard is not as well-kept as it once was, leaving a lot of undergrowth around the trailer.  Because of the tall weeds, neither boy notices that a rattlesnake has taken up post in the weeds looking for a meal.  The younger boy notices the snake first and screams.  The snake, startled, coils up and begins its telltale warning rattle.

The 12-year-old immediately runs back to rescue his brother and scoops him up before the snake strikes.  Unfortunately, as the older boy is running away with the younger in his arms, he trips and drops his brother.  The younger boy lands on the tongue of the trailer, before falling to the ground, just as you arrive to see what the commotion is all about.

You check on your sons and discover that a large bruise has already formed on the leg of the 2-year-old, who is clearly in tremendous pain.  Like any parent would, you retrieve an ice pack from the freezer, instruct the older boy to keep it on his brother’s leg while in the car, and drive to the hospital as fast as the speed limit allows.

When you arrive, everything goes as expected: registration, triage, and a relatively short wait before your injured child sees a doctor and is taken for x-rays.  While you wait, a hospital social worker asks you and your older son some questions and fills out a form on a clipboard.  The radiologist eventually reads the x-rays and determines that your young son has sustained a femoral shaft fracture.

X-Ray (Woodnick)Little known to you, the doctor tipped off the social worker when you arrived because she found the injury suspicious.  Now that the femoral shaft fracture has been confirmed by scans, the doctor’s suspicion is even greater – so much so that she believes her duty to report abuse under A.R.S. § 13-3620 has been triggered.

As a result, the social worker calls Child Protective Services (“CPS”) and begins investigation of suspected non-accidental trauma (“SNAT”).  You are prevented from leaving the hospital and you and your sons are separated while CPS officials perform a preliminary investigation.  The younger boy is highly impressionable and, although advanced in speech for his age, will still respond with a “yes” to most questions, particularly when they are asked of him by adults.  His interviewer coaxes the boy to admit that he gets hurt often.  When the 12-year-old is asked about suspected abuse, he promptly denies any wrongdoing.

One CPS worker discovers several bruises and cuts on both boys – you know them to be the result of having two rambunctious boys who like to play outdoors – and records them in the report.  As a result of the femoral fracture, the boys’ testimony, the presence of bruising and abrasions on both children, and the fanciful nature of the rattlesnake story, CPS determines that the children may be at risk and removes them from your custody until a formal investigation can be performed.

Just like that, your son’s unfortunate accident turns into a formal accusation of child abuse because the doctor and CPS officials are trained to identify femoral shaft fractures as suspected non-accidental trauma (SNAT) – a strong indication of abuse even if the injury is explained by the parent.

What do you do?

First, know that CPS will attempt to place the children with a family member, usually grandparents, while the investigation proceeds.  Next, call an experienced Arizona child abuse and neglect defense attorney.

Girl in Cast (Woodnick)The presumption that a femoral shaft fracture is more frequently caused by abuse than by accident is not insurmountable, but it carries significant weight in CPS proceedings.  In order to prove that no wrongdoing has occurred, you may need to hire an expert to review the x-rays and compare them to the scene of the accident in order to refute the claim of abuse.  Because the eyes of judges and jurors tend to glaze over when they hear complex medical testimony, your attorney will need to understand not only the law, but also the medicine and how to synthesize the two in a way that non-experts can understand.

In 2011, the Phoenix Children’s Hospital published a study about CPS SNAT investigations and femoral fractures at their institution (you can access the study here: http://www.ncbi.nlm.nih.gov/pubmed/21598897).  Doctors within the Division of Pediatric Orthopedic Surgery there observed that, over a five-year period, 31% of children with femoral shaft fractures were referred to CPS due to suspicion of non-accidental trauma.  Among children younger than 1 year, 90% of those children were referred to CPS.  Children whose parents used Medicaid or who had no insurance were also statistically more likely to be suspected.

These observations – that younger children and children of low-income families are more likely to be referred to CPS due to suspected non-accidental trauma – are just a few of the dangerous assumptions that we have seen lead to CPS action against fit parents.  Femoral shaft fractures are not the only common SNAT injuries, either: spiral fractures, circular burn marks, oddly shaped bruises, and cervical spine injuries are just a few of numerous alarm-triggering issues that many physicians feel obligated to report.

Posted in Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , | 1 Comment