The Legal Dangers of SIDS Investigations

SIDS, commonly known as Sudden Infant Death Syndrome, has an air of mystery around it.  Even though many people have heard of the SIDS diagnosis, they have no idea what it actually is. Sudden Infant Death Syndrome (“SIDS”) is defined as the inability to make a diagnosis.[1] Physicians only label an infant’s cause of death as SIDS after they have exhausted every other possible cause of death. Physicians, lawyers, and parents alike have been struggling with finding the cause of SIDS for centuries. The only thing that is generally known about SIDS is that, for whatever reason, the infant stops breathing causing his or her death. There have been many theories as to the cause of the syndrome, but no one particular theory has been proven to be true as of yet.

            One theory, concocted by Dr. Steinschneider, was that a connection between infants who suffer from apnea and infants who are diagnosed with SIDS existed.[2] Apnea is the obstruction of an infant’s breathing repeatedly throughout the night.[3] Dr. Steinschneider conducted tests in which he would use monitors to record infants’ breathing throughout the night.[4] Regardless of the fact that there was no scientific evidence proving that these apnea monitors protected against SIDS, Dr. Steinschneider concluded that monitor use was responsible for a drop in SIDS related deaths.[5] Unfortunately for Dr. Steinschneider, his conclusions were quickly found to lack any scientific merit when Waneta Hoyt, the mother of two children he used in his studies, admitted to smothering all five of her kids twenty seven years after the fact.[6] After this shocking revelation, there was no other option but to explore the darker theory behind SIDS, infanticide.

            The more heinous theory, and one that no one wants to believe could be the actual cause of infant death, is that SIDS is just a masquerade for infanticide. Death by smothering can be easily mistaken for SIDS. This is because infants are so young that they do not have the strength or ability to fight back when being smothered.[7] Therefore, when the coroner conducts an autopsy, they find no signs of struggle and are unable to distinguish between an infant’s inability to breathe on their own and an infant being slowly smothered.[8] See also People v. Eberle, 265 A.D.2d 881, 697 N.Y.S.2d 218 (4th Dep’t 1999) (where an autopsy report supported both suffocation and SIDS as cause of death, so expert had to base opinion on statements made by defendant instead of evidence). To add to this, since many physicians believed that SIDS was caused by apnea, they were not conducting autopsies on the bodies of infants who died of SIDS and police were not investigating the scenes of death.[9] These issues made it nearly impossible to reopen past cases of infants who died of SIDS and to reexamine their causes of death. Once Dr. Steinschneider’s apnea studies were found to be unwarranted, the medical community started taking SIDS very seriously. Doctors began requiring that children’s medical records be reviewed and that the scene of death be examined in an effort to rule out infanticide.[10]

            SIDS has not only had an impact on the medical community, but it has also greatly affected the legal community. Because of Dr. Steinschneider’s misguided studies, prosecutors have had a very hard time prosecuting cases involving SIDS. Prosecutors had no way of proving beyond a reasonable doubt that an infant was smothered to death, and if they did decide to press charges, they were running the risk of causing even more trauma and emotional distress to parents who lost their children to natural causes.[11]

            When dealing with SIDS cases, it is also important to examine the parents of the child and to look at whether they have any underlying health issues that need to be addressed. In prior studies, there have been links found between SIDS and Munchausen Syndrome by Proxy.[12] Munchausen Syndrome by Proxy is a mental health problem where an individual diagnoses their child with an illness or injury that the child does not have.[13] In some cases, the individuals actually cause the child’s illness or injury to gain sympathy from others because of their own implicit health issues. There are different kinds of Munchausen syndrome, but the specific kind that relates to SIDS is the “active inducer.”[14] Active inducers physically abuse children and are responsible for creating the children’s symptoms. It is thought that they do this to hide their own mental illness.[15] These individuals want to portray themselves as exceptional parents, so they take their children to the hospital immediately after causing the injury or illness.[16] Active inducers have been specifically known to abuse children by asphyxiation or repeated smothering and resuscitation.[17]

This is where Munchausen syndrome intersects with SIDS. Parents who have Munchausen Syndrome will often suffocate their children and rush them to the hospital where they claim that the infant stopped breathing on their own. For example, in 1990, a study of fifty-one apnea monitoring programs was conducted and revealed that forty percent of the programs treated patients whose apnea appeared to be induced by the parent.[18] Once the infants were admitted into the hospital and kept under watch, medical professionals were unable to confirm any symptoms of apnea.[19] In 1997, one physician even went as far as placing cameras in hospital rooms to watch interactions between parents who were suspected of abuse and their infants.[20] Of the thirty nine infants that were monitored, thirty three were being intentionally suffocated by their parents on camera.[21] Not only that, but some of the infants involved in the study had siblings who had previously passed away from SIDS.[22] This study showed that not only were the parents suffocating their children and causing their hospitalization, but some of the parents were likely to have already gotten away with infanticide once before.  In 2007, ten years later, suspicious SIDS cases were unfortunately still being reported. One specific case involved a mother taking her infant daughter to eleven different hospitals for a variety of reasons. Not one of the hospitals found anything out of the ordinary with the little girl, yet she ended up dying under suspicious circumstances which were investigated by the police.[23]

            A SIDS diagnosis does not automatically mean that the infant was smothered by their parents or caretakers. There have been other factors that have been linked to the cause of SIDS such as brain abnormalities, low birth weight, and respiratory infections.[24] Doctors inform parents to be careful when swaddling their babies and to place them on their backs when putting them to sleep because babies who have died from SIDS have been known to sleep on their sides or stomachs.  Even though a SIDS death can be due to natural causes, the medical community cannot deny that at least some infant deaths that have been diagnosed as SIDS have actually been caused by infanticide.  However, because SIDS and intentional trauma are so difficult to identify and investigate, the legal system could frequently mistake abuse for accident and accident for abuse.

[1] 17:12 SUDDEN INFANT DEATH SYNDROME; Handling Child Custody, Abuse and Adoption Cases § 17:12

[2] Catherine L. Goldenberg, Sudden Infant Death Syndrome As A Mask for Murder: Investigating and Prosecuting Infanticide, 28 Sw. U.L. Rev. 599 (1999)

[3] Pediatric obstructive sleep apnea, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/pediatric-sleep-apnea/basics/definition/con-20035990 (last visited Jul 9, 2016).

[4] Id.

[5] Id.

[6] Id.

[7] Handling Child Custody, Abuse and Adoption Cases § 17:12

[8] Id.

[9] Catherine L. Goldenberg, Sudden Infant Death Syndrome As A Mask for Murder: Investigating and Prosecuting Infanticide, 28 Sw. U.L. Rev. 599 (1999)

[10] Id.

[11] Id.

[12] Kathleen R. Miller, Detecting the Undetectable: An Examination of the Intersection Between Sudden Infant Death Syndrome and Munchausen by Proxy Syndrome, 5 Conn. Pub. Int. L.J. 287 (2006)

[13] Munchausen Syndrome by Proxy, WebMD (2014), http://www.webmd.com/mental-health/tc/munchausen-syndrome-by-proxy-topic-overview (last visited Jun 9, 2016).

[14] Catherine L. Goldenberg, Sudden Infant Death Syndrome As A Mask for Murder: Investigating and Prosecuting Infanticide, 28 Sw. U.L. Rev. 599 (1999)

[15] Id.

[16] Id.

[17] Id.

[18] Michael J. Light & Mary S. Sheridan, Munchausen Syndrome by Proxy and Apnea (MBPA): A Survey of Apnea Programs, 29 Clinical Pediatrics 162, 162 (1990) (citation omitted).

[19] Id.

[20] David P. Southall et al., Covert Video Recordings of Life-Threatening Child Abuse: Lessons for Child Protection, 100 Pediatrics 735, 735 (1997).

[21] Id.

[22] Id.

[23] http://www.ncbi.nlm.nih.gov/pubmed/17970367

[24] http://www.mayoclinic.org/diseases-conditions/sudden-infant-death-syndrome/basics/risk-factors/con-20020269

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Coping with Failed Adoptions

Building adopted families is a dream for many people.  Perhaps adoption is a choice in the wake of fertility challenges, perhaps adoption is the product of a relative who is unable to care for their own child through CPS, or perhaps building your family has always meant adopting.  After all, there are far too many children in state care who also need loving homes.

Unfortunately, although well-publicized situations such as the adoptive mother of a Russian child who, after a few years of challenges, put him on a plane and sent him back to Russia (causing international review of Eastern European adoption practices) are rare, what is not rare but seldom discussed is the volume of children who are adopted out of challenging situations. Despite efforts from their adoptive parents, these children end up back in foster care. It is often difficult to reconcile the idea that well-intentioned adoptive parents, who dedicate themselves and their resources to nurturing a child, are not ‘fixing’ the underlying issue for some children. These children usually require intensive therapy to cope with problems that arose long before the adoption.  Sometimes, the child lashes out, and even with the best of therapies and interventions, the child’s behavior unravels the family.

In international contexts, as referenced with the Russian child, there are language and cultural barriers.  Sometimes, although a child may be adopted at a younger age, adoptive parents may not have full disclosure regarding the child’s history.  This is especially concerning when adopting a child who may have been abused in care and has not received adequate treatment.

In one case, after adopting two children from Russia, a couple from Long Island requested that the judge vacate the adoption because the children were found to have “serious medical and psychiatric problems” and even went as far as threatening to kill their adoptive parents. [1]  The children were later placed in the care of a mental health institution. [2]  In Tennessee, another adoptive parent placed her adopted son on a plane back to Russia, alone, claiming that he had “violent and severe psychopathic issues.” [3]

Some people may believe that these issues inure to foreign adoptions only, but they would be wrong.  Domestic adoptions pose just as many perils and because they are entirely more common, the prevalence of adoptive home disruptions is significant although rarely discussed.

For examples, adoptions that involve children who have been raised in foster care may disrupt their adoptive families long after the decree is entered.  Children raised in foster care may have unresolved mental health or behavioral issues, such as reactive attachment disorder, learning disabilities, sexual aggression, and other mental health problems, that arise months or years later. [4]  Adoptive parents tend to believe that by nurturing these children, they will be able to resolve these concerns.

Unfortunately, the years of social, emotional, and cognitive deficiencies that have traumatized these children require more than just nurturing.  Some children are never able to adjust and bond with their new families and instead act out against them. This is known as reactive attachment disorder (RAD), and it usually occurs due to abuse and neglect in the child’s earlier years of life. [5]  Unfortunately, some adoptive parents do not account for issues such as those listed above and quickly realize that they cannot financially, emotionally, or physically continue to care for the children.[6]  Overall, 3-10% of the adoptions involving foster children with these issues end in dissolution of the adoption. [7]  These children often are returned to the same system from which they were adopted.  Their adoptive parents have to make the difficult decision to surrender the child back into state care because they are now the ones incapable of providing care for the child.

Yes, those well intentioned adoptive parents call CPS and ask them to take their child back into state custody.  Sometimes this happens in a criminal setting where the adopted child, now a young teenager, is arrested for harming another child (perhaps a friend or a sibling).  In this scenario, how can the adoptive family supervise their adopted child around siblings or acquaintances 24 hours per day?

The notion of a surrender dependency, meaning that the parents together ask the court to take custody of the children, is relatively rare – but it happens.  The purpose of most protective statutes in Arizona provide parents this opportunity to seek temporary or permanent court supervision and state assistance with their adopted child.  Although states have come a long way with safe harbor provisions for natural parents of newborns (newborns can be left at some hospitals and fire stations by parents who cannot care for them), adoptive parents are typically left with seeking juvenile court intervention, instead.

This article is not meant to scare individuals looking to adopt – quite the contrary, as the majority of adoptions are straightforward and end in wonderful healthy bonding relationships between the children and their adoptive parents. However, there are risks to adoption that need to be carefully taken into consideration by individuals who intend to adopt before they begin the process. Many adoptive parents have had to deal with “broken” adoptions. This is precisely why it is important to share the experience and support other adoptive parents.  Most importantly, parents of adoptive children need to know that they are not alone in making these difficult choices.

 

[1] http://www.huffingtonpost.com/mirah-riben/when-adoptions-fail_b_6064246.html

[2] Id.

[3] Damien Cave, At a Family’s Home in Tennessee, Reminders of a Boy Returned to Russia, N.Y. Times, Apr. 11, 2010, at A16.

[4] http://www.nacac.org/adoptionsubsidy/factsheets/childsupportenforcement.html

[5] http://abcnews.go.com/GMA/Parenting/return-adopted-child-advice-parents-international-adoptions/story?id=10360247

[6] Dawn J. Post & Brian Zimmerman, The Revolving Doors of Family Court: Confronting Broken Adoptions, 40 Cap. U.L. Rev. 437, 438 (2012)

[7] http://www.nacac.org/adoptionsubsidy/factsheets/childsupportenforcement.html

Tuscon TV personalities charged with child abuse

Generally, when a baby tests positive for illegal drugs, it is immediately after birth.  That is to say, the drug for which the baby is positive is passed through the mother in utero.  The story below shows there are exceptions to every rule.  And you better believe the Department of Child Safety will be knocking on (or down) your door if your four-month-old tests positive for cocaine.

An Oro Valley couple known best as Tucson TV reporters are facing drug charges after tests revealed cocaine in their baby’s system.

According to Oro Valley police, Krystin Lisaius, 26, and husband Somchai Lisaius, 42, were indicted on charges of possession of a dangerous drug, drug paraphernalia, and child abuse on June 9.

They made their first appearance in court on Monday.

Riley said the baby was taken to the hospital on May 15 after being breast-fed and appearing to be in distress. Tests revealed cocaine in the four-month-old’s bloodstream.

The baby is living with a relative. According to the AP, they couldn’t locate an attorney for the couple.

Our firm has helped Mothers who are using Methadone during pregnancy keep physical custody of their children after birth.  However, in such cases, DCS would want to see a decrease in Methadone usage and certainly require abstinence from other drugs.  Drug use, per se, does not preclude parenting as long as the parent demonstrates genuine commitment to getting clean and a safety plan can protect the child from potential harm.

In fact, we have litigated many cases in which the parent tested positive for drugs and DCS has taken legal custody of their child.  So long as the parent follows protocols and shows sobriety, regaining legal custody of their children is possible.

In the case at hand, however, even if Ms. Lisaius was unaware that cocaine would pass to her child via breastfeeding, she will have a long road of services and compliance ahead.  Convincing DCS and the Pima County Juvenile Court that the carelessness she displayed in this instance will never be repeated will not be a simple task.

 

Update on the case: DCS interview without parental consent

 

In February, the Department of Child Safety interviewed a child for a child neglect investigation without parental consent. This caused much debate, with the parents (and the Ombudsman) arguing that DCS lacked legal authority to interview their child without consent.  DCS countered by pointing out that the Department routinely interviews children in neglect cases by justification of an agency policy (and notwithstanding the legal prohibition against interviews in those types of investigations).

KJZZ interviewed Gregg Woodnick when the controversy arose, who pointed out that the hammer-802300_960_720.jpgJuvenile Court in Arizona often overlooks procedural mistakes, such as improperly nonconsensual interviews of children, if the information obtained relates directly to the child’s welfare.  DCS, meanwhile, requested an opinion from Mark Brnovich, the Arizona Attorney General, regarding the propriety of nonconsensual child interviews in neglect investigation.

Last month, Attorney General Mark Brnovich released an opinion siding with DCS, stating that DCS may legally interview the children specified in the exception provisions without parental notice, as long as the interview is relevant to the case.  Brnovich cited DCS’s duty to protect children as the underlying support for his position, apparently placing the agency at odds with the express language of the statutes.

Discussing the Department’s duty, Brnovich said, “DCS achieves this purpose through four functions: (1) investigating “reports of abuse and neglect”; (2) assessing, promoting, and supporting child safety through appropriate placements in response to “allegations of abuse or neglect”; (3) cooperating with law enforcement regarding criminal conduct allegations; and (4) coordinating services to “achieve and maintain permanency” for children and families.”

Brnovich’s opinion, and the Department’s ostensible intent to continue interviewing children in neglect investigations without parental consent in violation of Arizona law, will certainly result in legal battles as parents accused of neglect will move to preclude evidence that the Department collected by improperly interviewing their children.  The tension between due process for parents and the Department’s duty to protect children continuously reveals controversies in the law.

If a sufficient number of investigations become embattled over the consent to interview children in neglect cases, DCS could simply begin classifying every investigation as an “abuse or abandonment” investigation to sidestep the prohibition.  Alternatively, the Arizona Legislature may simply change the statute to allow nonconsensual interviews of children in all types of investigations.  Either way, Arizona taxpayers can look forward to the disagreement between the Attorney General and the Ombudsman resulting in expensive legal battles for the foreseeable future.

 

To Catch a Predator: Scottsdale edition

Two weeks ago, six men were arrested by Scottsdale police after an undercover prostitution sting. According to court documents, the Scottsdale police placed “escort” ads on backpage.com and other websites, and the men responded looking for sex with underage girls. The men arrived at the place they believed to be meeting the girls and were arrested by police, who had set up an operation at the nearby Scottsdale airport.  The “escorts” were, in fact, undercover police officers or actresses pretending to be below the age of majority.

Several Valley cities have cracked down on prostitution solicitation using ‘Catch a Predator’ undercover operations. If you are unfamiliar with ‘To Catch a Predator’, the show features hidden camera investigations, in which the program’s actors impersonate underage people and help police arrest male adults who contacted them over the internet for sexual services.  Although the television quasi-documentaries are somewhat novel, police have been using these types of undercover stings for many years to make arrests.

Let’s say a man named John goes to a website seeking sexual services. John may not know that the girl he’s calling are under aged since they are advertised as over 18 and the login on the particular website requires verification of the same.  The advertising “escort” provides a number for John to call. John calls the number—but the girl on the line does not really intend to engage in a criminal act.  Instead, her goal is to persuade John to come to her location while alluding to the fact that she is underage – at least, enough to secure an arrest.

Once the services are arranged for a particular date, time and place the undercover officer/actress will perhaps ask John to pick up a pack of cigarettes on the way to the motel because she can’t buy them or had her “fake ID” taken away (ostensibly because she is under 18). Of course, the call is recorded and used as evidence that John knew his anticipated sexual partner is a minor.

When John arrives at the hotel, he may be arrested on the spot or the police may wait for him to engage in a conversation with the undercover detective while being monitored from the next room.  Because Arizona law criminalizes the agreement to exchange money for a sex act, the police need not wait for John to actually disrobe or for any contact to occur before making the arrest.

These types of sting operations are one of the many tools detectives can use to arrest men who want to buy sex.  The biggest challenge in many cases is establishing that the target of the sting operation knew and intended to buy sex with a minor, which is a far more severe offense than soliciting prostitution from an adult.  As criminals become more sophisticated and advertisements for commercial sex exchanges move into more discrete channels, so too do sting operations evolve and create new legal issues.

 

 

 

Same-sex adoption made legal in all 50 states: What does this mean for Arizona?

In March, a federal judge ruled that Mississippi’s holdout ban on same-sex couples’ adoptions was unconstitutional, making same-sex adoption legal in all 50 states.

pride

This ruling, like many court decisions involving same-sex couples’ rights, strains the relationship between state and federal law. Although states are obviously required to follow federal law, federal mandates cannot always stop states from enacting laws and policies that frustrate the purpose of higher court rulings.

Like Mississippi, Arizona has had more than its fair share of same-sex couple adoption controversy. In October 2014, the Ninth Circuit Court of Appeals overturned Arizona’s law limiting a marriage to only a man and a woman (before the U.S. Supreme Court declared the same result nationally). From November 2014 to February 2015, the state issued same-sex joint adoption licenses, but halted the practice when the Department of Child Safety refused to continue issuing joint adoptions to same-sex married couples in derogation of state law. In April 2015, Governor Doug Ducey issued a public statement that same-sex adoption was in fact legal, and that DCS was required to give same-sex couples licenses.

Still, many hurdles face same-sex couples who seek to adopt, or who adopted before Arizona was forced to recognize the validity of their marriages. An unknown, but substantial, number of couples were not permitted to jointly adopt, leaving parents and families confused as to their legal statuses. For example, if a couple was married before October 2014 and adopted children, but they were not allowed to jointly adopt, what legal rights might the second (non-adoptive) parent have? These kinds of issues are already before the courts in Arizona and will need to be resolved in this and many other states while the legal landscape adjusts to the new normal.

With that in mind, and although there remain numerous challenges for same-sex adoptive couples to overcome, 2016 marks the first year in which all 50 states now grant adoptions to same-sex couples, giving thousands of children an opportunity that they did not have a year ago: the chance to be adopted by a loving family.

New details emerge about Phoenix child abuse case

After a Phoenix mother was charged with six counts of child abuse, new details have emerged about what was observed when officers arrived at her home.

Officers were called to the scene of Alejandra Angel Flores’ house when her sister had called authorities about a domestic violence related incident at Flores’ apartment. When officers arrived, they did not find a domestic violence incident, but instead a situation of apparent child abuse.

silhouettes-of-children

According to a Phoenix New Times article, when Flores opened the door, Phoenix officer Anthony Daley said he found six children who appeared to be wearing dirty clothes and looked like they had not bathed in a long time.

After Flores agreed to a welfare check by officers, the scene they found was even more disturbing. Dirt and food littered the floors, electrical wires were exposed, dirty dishes were piled in the sink, and cockroaches were everywhere.

“While walking through the apartment, I had difficulty breathing and had to exit to catch my breath due to the odor,” Daley noted.

According to the officers, Flores was said to not be under the influence of drugs or alcohol at the time of the welfare check. One of the other officers called the Department of Child Safety, which sent out two employees to take custody of the children. According to court documents, Flores did not have any family members that could take care of the children.

Ordinarily, the Department of Child Safety attempts to place children taken from homes with family members.  Arizona law requires the Department to choose the “least restrictive placement” that is consistent with the children’s needs.  A.R.S. § 8-514 prioritizes placement with the child’s parent or grandparent before other family members and, if none of those are available, then with a licensed foster care provider or other caretaker.  Sometimes, placement with the parent during the investigation is still possible (an “in-home dependency”), although other circumstances may warrant removal of a child from all contact with any family members while the court process takes place.  Among the most frequent scenarios, however, is the one in which DCS places the allegedly dependent child with a family member – a “kinship placement.”

Kinship placement presents a variety of challenges for families because, often, the family member tasked with providing care for the child during investigation is torn between following the DCS case plan and wanting to believe that their loved one – the child’s parent – did not act in such a way as to justify DCS intervention at all.  A grandparent, for example, must juggle with providing for their grandchild placed in their custody while simultaneously supporting a healthy resolution for their child accused of child mistreatment or neglect.

Additionally, DCS does not always identify or fully consider relative placements before sending children into foster homes.  Although the overwhelming majority of foster parents are fantastic at providing children the care they need during times of crisis, Arizona law acknowledges that the best placement is with family, if possible.  Legal disputes regarding the propriety of placement during a DCS investigation arise frequently in Maricopa County, where the Juvenile Division of the Maricopa County Superior Court maintains jurisdiction over dependency and delinquency matters.

A DCS investigation can be the single most stressful experience for Arizona parents, children, and families.  Although child welfare issues trigger expansive authority in the Department of Child Safety to intervene and protect children, the parents and other family members still have the right to be heard and to participate in the proceedings.  DCS does extremely important work, but their famously overwhelming case load sometimes results in mistakes being made.  Mistakes in placement are among the most common and require quick resolution for the child’s benefit.

Proposed Senate bill wants to add omitted offenders to sex offender database

The Arizona Sex Offender Information Registry is a valuable resource for many Arizona residents. The database, maintained by the Department of Public Safety, lists information about individuals required to register as sex offenders pursuant to state law.  The information includes basic biographical information, some information about the offender’s criminal conviction, and their most recent known whereabouts.

The database does not include information about every registered sex offender.  From the DPS website, a disclaimer reads: “WARNING – This site does not contain information on all convicted sex offenders!  Information is only provided for sex offenders with risk assessment scores of Level 2 (Intermediate) or Level 3 (High)[.]”  Sen. John Kavanagh (R –  District 8 (Fountain Hills)), wants to change that, and his proposal is gaining momentum in the Arizona Legislature.

Woman_using_computer.jpg

The DPS website describes the process through which registered sex offenders are assigned risk assessment scores, indicating that the custodial agency of the individual completes a risk assessment screening profile and assigns a score, called the “standardized Arizona Risk Assessment.”

“Level 2” and “Level 3” offenders, considered Intermediate and High Risk respectively, are featured on the database, but Level 1 (Low Risk) offenders are not.  According to Sen. Kavanagh and like-minded politicians, the problem with this system is that the standardized criteria for the Arizona Risk Assessment have not been updated in decades.

For example, according to an article published by the Arizona Republic, offenders are considered lower risk if they have a job, molested a girl instead of a boy, committed a crime against a family member instead of a stranger, are not substance abusers, or did not use a weapon in the commission of the offense.  Many of the criteria used do not align with contemporary psychological guidelines or criminology – or in some cases, common sense.

Sen. Kavanagh’s proposed solution is Senate Bill 1286. This bill would require DPS to include every registered sex offender on the database notwithstanding their Risk Assessment score.

Many lawmakers were appalled at the fact that not all offenders were on the database and consider the current law a major issue.

“Why has it taken all these years to do this? This is appalling,” said Sen. Bob Worsley, R-Mesa said in a committee hearing in February. “I have five daughters and 25 grandchildren and I didn’t know this.”

Of course, the information DPS provides on the database is “intended for community safety purposes only,” and not to “threaten, intimidate, or harass.”  The intent of the Risk Assessment system is to give Arizonans information they need to feel safe.  Per the DPS website, Arizona registers approximately 15,500 sex offenders who “come from all walks of life.”  The myriad and sometimes peculiar ways an individual may be required to register is the subject of another article; however, the assertion that there is no foolproof “profile” of a potential sex offender is true.

Unfortunately, although the registry may help Arizonans avoid contact with registered offenders in some settings, the database may provide a false sense of security for individuals who are pleased to learn that they do not live near any known sex offenders.

Because the overwhelming majority of sex offenses are perpetrated against family members or people who the offender knows, focusing too much on the registry entries and not enough on maintaining healthy boundaries and fostering an open intrafamily dialogue, especially with children, could lull Arizonans into a false sense of security even if SB1286 passes.  There are no substitutes for vigilance and common sense.

Woodnick Law attorney by day, ‘Phish’ podcaster by night

For Brad TenBrook, being a lawyer is a passion, but when he’s not hanging around the office assisting clients or in court litigating, he’s working on his other passion: his nationally known podcast, the Helping Friendly Podcast.Brad+Photo

Brad started the Helping Friendly Podcast (@HFPod) with his co-host and long-time friend, RJ.  HFPod focuses on the band Phish.  Brad said he was inspired to make the podcast after being an avid listener of music podcasts and realizing his favorite band, Phish, did not have a regularly produced show. That is when Brad and RJ decided to create their own.  The podcast generally includes a Phish show and commentary about that show’s specific songs and jams.  Phish is known for their unique set lists and extended improvisation of a 30+ year music catalog.

HFPod has had nationally renowned authors and music critiques join for a guest pick and chat.  The guests usually choose a show they attended.  Since Phish has played well over 1600 live shows, there is always something new to analyze and enjoy.

The podcast is now biweekly-ish and often includes a third co-host, Jonathon (@rowj).  The three hosts (and their guests) select a show, take a few days to listen and review, and then record the podcast over the internet.  When Phish is out on tour, they might have correspondents from specific shows report back to the podcast on the venue, the scene, and of course, the jams.  If the band is not on tour, the HFPod has had guests from as far away as South Korea chat about their four favorite Vermont-based musicians.

“We’ll pick a show form 1992, listen to it a few times, and chat about it for the podcast,” said Brad.

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Brad said he has enjoyed being a part of the podcast and views it a fun hobby outside of work.  Even though music is always playing in Brad’s office, he says “there is no way I’ve listened to all of Phish’s shows”.

“It’s a pretty unique community. The podcast is a fun way to bring together and chat with Phish fans—even if it’s just over the internet,” Brad said. “I feel like the podcast allows me to be part of the Phish community, even if I don’t get to see as many shows as I did in the 1990s.”

 

DCS Policy: Did DCS violate the Arizona law?

In the news this week, the Department of Child Safety violated Arizona law by interviewing a child without parental consent, according to a report from the Arizona Ombudsman.

In October of 2014, a parent complained to Arizona Ombudsman Citizen’s Aide that their child had been interviewed by a DCS worker while at school without parental consent. According to the state law, “a DCS worker cannot interview a child without parental consent for cases of neglect that do not involve abuse or abandonment.”  The complaint triggered an investigation and the Ombudsman concluded that DCS routinely interviews children in neglect cases, by policy, notwithstanding the legal prohibition against those nonconsensual interviews. Liftarn_Adult_and_child.svg

DCS’s policy is problematic for a few reasons, including the fact that DCS itself classifies whether an investigation is one involving abuse, abandonment, or neglect.  DCS essentially creates the rule for itself when classifying investigations and can determine whether consent is necessary before a child interview.  In the cases the Ombudsman reviewed, however, DCS classified investigations as neglect-based but still proceeded with child interviews without permission.  Those interviews are contrary to law.

Interestingly, Gregg Woodnick told KJZZ that, in some cases, statements from children are accepted in court regardless what the law says. KJZZ_Gen_BlackBlue

“Even though the information may not have been obtained exactly as envisioned under a statute, the court is very likely to consider it,” Woodnick told KJZZ/NPR, “Because the consequence of excluding that information could be to put a child in harm’s way.”

Given the court’s willingness to consider children’s statements even if the parent did not consent, perhaps the Department’s interview policy is the best practice.  Unfortunately, Arizona law disagrees, potentially creating scenarios in which parents of neglected children refuse interviews and reduce the Department’s ability to collect necessary information.  If child interviews in neglect cases are the best practice, then it falls upon the Arizona Legislature to update the statutes.

Meanwhile, DCS has requested an opinion from the Attorney General and will ostensibly continue to interview children without consent, despite the Ombudsman’s report, until a court orders otherwise.  DCS remains an embattled agency in Arizona and will continue to struggle with the immense burden of attempting to protect Arizona’s children.

The Ombudsman’s Report can be found here.  KJZZ’s story, written by Alexandra Olgin and including commentary from Gregg Woodnick, can be found here.