Regulatory Issues in Arizona Residential Treatment Centers

On February 19, The Arizona Republic/ 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.

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:

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:  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.

Should I Testify in My Own Defense?

Should I testify in my own defense?

In every criminal trial, the defendant must grapple with this question.  An Arizona criminal defense attorney advising on the issue could consider a virtually unlimited number of strategies and concerns when responding to their client’s inquiry, and the client may walk away from the conversation even more confused than when they began.

Document (Woodnick)Deciding whether testifying in your own defense will be beneficial to your case requires basic understanding of the U.S. Constitution and its role in criminal cases:

The first ten amendments of the Constitution – known as the Bill of Rights Amendments – contain numerous guarantees of protecting from government intrusion.  The Fourth, Fifth, and Sixth Amendments are particularly important in criminal defense, as they outline some of the boundaries which law enforcement officers and prosecutors cannot legally cross in making arrests, levying charges, and seeking convictions.

The Fourth Amendment protects against unreasonable searches of private places, such as the home, and unlawful seizure of private property.  The Fifth Amendment requires grand jury indictments for capital offenses – like murder – in addition to protecting witnesses against making self-incriminating statements under oath.  The Sixth Amendment guarantees access to a speedy public trial, counsel for the defense, compulsory process for bringing witnesses to court, and a few other provisions.

These amendments work as a comprehensive package to ensure fairness in the justice system.  The Fifth Amendment prohibits the state from forcing the accused to testify and has also been construed to guarantee the defendant’s right to testify on their own behalf, if they so choose.

Why include both?  At times, it may be unfair to force a defendant to testify because doing so might expose unrelated crimes and controversial facts unrelated to the present charge or poison the jury’s ability to make a fair assessment of the evidence.  On the other hand, some charges are so speculative or backed by so much circumstantial evidence that preventing the accused from explaining the evidence in court would all but guarantee a conviction regardless of whether they actually committed the crime.

Police Tape (Woodnick)But those are just the legal issues – in a criminal case, there are more factors to consider than constitutional fairness.  A sympathetic jury (perhaps drawn from a more representative group of peers in a city court), a particularly charismatic or relatable defendant, powerful testimony from a key opposing witness, or a complex or novel defense theory may make the defendant’s testimony strategically helpful.  Conversely, an aggressive prosecutor, weak-spoken defendant, or lack of convincing evidence against the defendant may make the defendant’s testimony harmful to the defense.

Given all of these concerns, what is the correct answer to the question of whether you should testify in your own defense?  Uttered thousands of times daily in law schools around the world, the answer is: “It depends.”  The most effective strategy for your defense is highly dependent on the facts and circumstances of your case, which can only be analyzed after an honest and thorough consultation with an attorney.  A Scottsdale defense attorney handling a case in the Maricopa County Superior Court may prefer different tactics than a Phoenix public defender working against federal charges.  Whether to testify is ultimately left to the accused, but an informed decision is the best decision.

Munchausen by Proxy Allegations in Arizona

Allegations of child abuse can come from a number of sources.  Teachers, caretakers, physicians, and some other professionals are required to report their suspicions of abuse due to Arizona’s “mandatory reporting” statute (A.R.S. § 13-3620), leading to CPS investigations in many instances.

The ‘mandatory reporter’s’ suspicion is also a matter of potential confusion – the classic example of a doctor or teacher discovering abnormal bruises or other injuries that they suspect are the result of abuse does occur, but the scope of potential abuse allegations has grown well beyond the realm of physical evidence.  Although infrequently, Arizona child abuse and neglect defense attorneys sometimes encounter accusations of medical abuse or neglect by way of “factitious disorders.”

Factitious disorders, most notably Munchausen Syndrome by proxy, can be generally described as follows:X-ray (Woodnick)

A factitious disorder is one in which the individual fabricates symptoms or deliberately produces injuries in order to assume the “sick” role and receive attention or affection from medical professionals, family members, or others.

In rare cases, caretakers may substitute children in the “sick” role by ascribing symptoms to them and repeatedly seeking medical help on their behalf.  The caretaker may subject the child to frequent hospital visits, demand multiple opinions, elaborate examinations, and laboratory screenings, and even falsify test results or poison and injure the child in order to make their claims legitimate.

Munchausen syndrome is a mental health disorder identified using criteria from the Diagnostic and Statistical Manual IV, or DSM-IV.  The DSM-IV provides guidelines for detecting and treating mental health problems, but there is little information available to professionals who are tasked with diagnosing symptoms like those experienced by sufferers of Munchausen.

For practical legal purposes, this means that Munchausen is difficult to prove or disprove.  CPS may uncover medical records which are inconsistent with the child’s symptoms when investigating a Munchausen by proxy allegation, but such records may be incomplete or misleading – a child who takes his cue from Ferris Bueller’s Day Off and fakes illness might convince his parent to take him to the doctor’s office for tests, leaving behind a trail of paperwork which could indicate foul play when viewed under the Munchausen magnifying glass.

A child who repeats this behavior many times – children with learning or developmental disabilities, problems with school bullies, or difficult-to-spot medical problems may actively attempt to avoid going to school on a regular basis by feigning illness – could be seen as a victim of Munchausen by proxy when the reality of the situation is that their concerned parent properly sought medical care for their child.

Because Munchausen by proxy is factitious (not to be confused with fictitious, although there are many parallels between the two), the disorder is nearly impossible to demonstrate or disprove beyond a preponderance of available evidence.  Unfortunately for falsely accused parents, USCA (Woodnick)however, CPS workers may establish a strong presumptive claim using medical records, expert testimony, and any incriminating history about the parent that they are able to uncover (evidentiary rules which may stop attorneys from using evidence of past acts as evidence in court do not apply with the same heft in child abuse cases).

For parents falsely accused of abusing their children via Munchausen by proxy, a complex legal battle awaits.  Strategic use of expert testimony, intimate knowledge of evidentiary limitations, and understanding of both legal and medical rules and terminology may all necessary to parry a false allegation of Munchausen-related abuse.