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.

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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.

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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.

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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.

Mesa Duct Tape Case: Have you heard?

A court case in Mesa has sparked a lot of controversy, where a man and the mother of a 3 year-year-old girl are being charged with multiple felonies after the girl was was found duct-taped and covered in feces inside of a closet, according to the Maricopa County Attorney’s Office.

Francisco Rios-Covarrubias and the mother in this case of child neglect and abuse face multiple charges, including dangerous crimes against a child, kidnapping, child abuse and sexual conduct with a minor.

In a news conference last month, County Attorney Bill Montgomery told the Arizona Republic: “In contrast and comparison to the kindness I received growing up … with the treatment of some children in our community, it is absolutely heartbreaking,” he said. “It’s why I am so committed to wanting to fight for the most vulnerable and defenseless in our community who should receive that same kind of care and compassion instead of what they all too often are faced with.”

In sensitive cases like these, it can be difficult to stay faithful to the judicial system.  After all, should someone accused of doing something so depraved to a child be given due process?  For criminal law attorneys on both sides of the aisle (prosecution and defense), a tragedy of this magnitude can cause tremendous stress. policia

First and foremost, attorneys understand that each case must be treated with the same procedural safeguards because the Constitution requires them.  From the most minor traffic offenses to the most severe forms of child abuse and neglect, every case demands due process.  Unfortunately, that process can be slow and methodical, especially to the watchful public eye that demands swift retributive justice.  Whether or not the public approves, the case will not likely be resolved for several months or more.

Additionally, although cases like this one may appear factually indisputable, sometimes the most obvious conclusions break down under scrutiny.  One needs to consider the warnings of “Making a Murderer” to understand that costly mistakes can occur in the legal system.  It takes time for the parties to sort through the evidence and attempt to piece together what happened because even the most public of events will have subtle differences in each witness’s account.  Avoiding sending someone to prison for a crime they did not commit is the core purpose of the jury trial system in Maricopa County.

Of course, not every mistake results in prejudicial harm to the accused – sometimes, the state may fail to secure a conviction against a person who is dangerous and should face consequences for their actions.  Both sides – prosecution and defense – do not want to show up in the news or on a documentary for failing to do their jobs well.  This tension can sometimes result in unreasonable plea offers or unnecessary trials, but the pressure of the public eye helps to ensure that adequate care is taken – especially in high-profile cases.  As Phoenix area attorneys often say, no one wants to end up in the New Times for screwing up.

There are many more reasons that tragedies like the one involving the girl in Mesa are not as “open and shut” as the public would like.  Even after the case moves through the pretrial procedure and discovery processes, putting on a trial in a case with substantial media coverage requires tremendous planning and care.  Sometimes, when a case is highly publicized, it may not even be possible to hold the trial in the county where the crime occurred, leading to further scheduling delays and potential mistrials.  In the end, the judicial system is designed to protect the rights of the accused because, as jurists have argued for centuries, it is better that some guilty men go free than for an innocent man to suffer a false conviction.

 

 

 

 

 

Fingerprint Identification

Fingerprint identification is perhaps the most important and well-known form of biometrics. Virtually everyone understands the basics: fingerprints are unique to each individual and contain markers that can be used to compare samples and identify the person responsible for leaving a fingerprint mark with substantial reliability. Although not always as “cut and dry” as they appear in crime dramas, fingerprints are a steady tool of law and a source of many interesting scenarios.

Years ago, I represented a client in a dependency matter. The situation was complicated because the child was a teenager whose behavior was out of control. The parents, divorced but able to work together to raise their three children, were at the end of their rope with their 14-year-old, who had been diagnosed wifingerprintsth Oppositional Defiance Disorder.

CPS, now known as DCS, got involved at their beckoning. The child ultimately received treatment while in CPS care and now, many years later, is a successful adult with his associate’s degree and a good job.

Fast forward to the present day: my client had a chance to take a positon at a school district. His positon was not academic, but the district did require that he submit a fingerprint card. His clearance was denied and he was on the precipice of losing this job opportunity because his fingerprints were tied to the old DCS.

Fortunately, there are options. There is an administrative process overseen by a administrative law judge where we had the chance to address the issue.

First, we argued that there is a good cause for the Board to consider approving the card as the incident occurred long ago and, in this case, placement on the registry was more perfunctory than anything. This was not a parent who intentionally abused his child.

Second, there are exceptions to the central registry clearance rules in some limited circumstances. In theory, a person who has had a “substantiation” on their record and in the database with CPS/DCS can nonetheless request a finding bypassing the registration.

In considering whether an exception to the fingerprint clearance requirement was necessary, I was reminded of a doctor we represented many years ago.  He was a retired surgeon who, by life’s circumstances, was going to be raising his step- grandchild. The statute required that he be fingerprinted. His prints would not take. He went to the police department on 2 separate occasions but there were only able to produce blotches with limited identifiable loci (the fingerprint markers used for comparing samples and identifying fingerprints).  It turns out that, after years of scrubbing in for surgeries multiple times a day, the ridges in his prints were dulled to the point of being flat and he was unprintable.

Fortunately, we had an understanding judge who realized who helped us make a good cause exception to the rule. Fingerprints can be a tricky field to navigate, especially involving cases of child custody.

CPS Left A Card On My Door To Call Them! What Should I Do?

frequently get calls from parents who have come home to find a DCS note on their door. It is usually a business card from a DCS investigator requesting that the parent contact them immediately.  

In Arizona, Child Protective Services has an obligation to investigate allegations of child abuse and neglect.  (The investigations include, but are not limited to: unexplained bruises, malnutrition symptoms, Munchausen’s Syndrome, and parents with substance abuse issues.) Their job is to assure that children are safe, but often their investigation leads to serious legal consequences, including DCS taking the children from their parents and criminal charges.

When you get a note on your door, you should not ignore it.  If you fail to respond you could be sending the wrong message to DCS or unwittingly keeping your child in danger if they suspect that someone else under your roof is abusing the child.  Yes, you need an attorney. Even if DCS does not remove your child, their ‘substantiated’ findings can impact you dramatically.  Teachers, doctors, therapists and other licensed professionals can lose their careers over these issues. 

The Constitution guarantees you the right to remain silent and not answer questions.  While not answering their questions can be dangerous, you need to strongly consider telling DCS that you will cooperate with their investigation but only with your lawyer present. In most cases, this will make the process with DCS somewhat smoother. 

Remember, if you get a note on your door, do not panic, but be sure to seek out the help you need to handle the situation with proper care.