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.



[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.



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


Getting Back Baby Jack – Putative Father Registration and Consent to Adoption in Arizona

A nightmare scenario for one Utah father has made national news.  The most disconcerting part of his story is that it could happen again right here in Arizona.

In 2010, Jake Strickland learned that he was to become a father.  Strickland and the baby’s mother, Whitney Pettersson Rathjen, mutually agreed to share joint responsibility for the care of their son despite their inability to maintain their intimate relationship together.  As the pregnancy progressed, Strickland became more and more involved.  He invited Rathjen to numerous family gatherings, paid for medical expenses and groceries, attended doctor appointments, and even converted a room in his home into a nursery to prepare for the arrival and care of his child.

During this time, Strickland and Rathjen briefly discussed the issue of whether Strickland should register as the baby’s putative father.  A putative father registry reserves potential paternity rights (including consent to adoption) for the unwed biological father of a child in the event that parentage is disputed after the baby is born.  The legal presumption is that the husband of a married woman is the biological father of her child unless the unwed biological father overcomes legal barriers to establishing paternity, one of which is putative father registration.


Rathjen insisted that Strickland not register and take the mother at her word that she would not attempt to terminate his parental rights.  She even went so far as to threaten Strickland, saying that she would never allow him to see the baby if he submitted his name to the putative father registry.  Strickland, although leery of Rathjen’s odd response, felt he had no choice and never registered.

The day before the baby was born, Strickland and Rathjen spent the evening hours together walking through downtown Salt Lake City and enjoying the Christmas lights on display.  On December 29, 2010, Rathjen gave birth and, unbeknownst to Strickland, declared that she did not know the identity of the father and immediately consented to an adoption.

For eight days, Rathjen ignored or curtly responded to Strickland’s attempts to communicate with her.  At one point, Rathjen affirmed that she was still scheduled to have the baby by Caesarean section on January 12 before finally divulging the truth on January 5.  Since then, Strickland has been embroiled in an extensive and complex legal dispute with Rathjen, her attorneys, the adoptive parents, LDS Family Services, and the State of Utah over his wrongfully terminated parental rights.

Strickland alleges that Rathjen worked together with social workers and the adoptive family to streamline the adoption process and guarantee that he could not assert his paternal right to consent to the adoption until it was too late.  Strickland has been battling for the restoration of his parental rights for three years and filed a civil suit for fraud, racketeering, and other claims on January 2, 2014.  Essentially, Strickland believes that Utah law creates an adoption system that a birth mother can use to defraud an unwed father out of his parental rights with little to no recourse.

It is not yet clear whether the courts will vindicate Strickland’s claims, and the story is certain to continue to evolve as the civil case progresses (the adoption challenge, however, has reached the appellate stage and has established a clear record of factual wrongdoing even if the law does not create an eventual remedy).  That said, the case of “Baby Jack” in Utah could have happened much the same way in Arizona or one of numerous other states with similar unwed paternity law.

Arizona’s putative father registry statute allows an unwed father to register his claim of paternity and to receive notice of adoption proceedings.  The unwed father must affirm that he is willing and able to support the child and actively seeking paternity in a separate action.  The unwed father must register within thirty days of the child’s birth unless he proves by clear and convincing evidence that it was impossible at the time, but the father’s lack of knowledge of the pregnancy is specifically excluded as a reason for failure to file within the thirty-day period.  The statute, codified at A.R.S. § 8-106.01, declares that “the fact that the putative father had sexual intercourse with the mother is deemed to be notice to the putative father of the pregnancy.”  Furthermore, the adoption consent statute (A.R.S. § 8-106) requires the putative father to object to a proposed adoption by filing a paternity petition and serving it to the mother.

19th Century Family

This means that a father’s right to consent to, or reject, a potential adoption of his child can be defeated if the mother simply refuses to tell him about the pregnancy or the date of the child’s birth.  The Baby Jack scenario could easily be repeated in Arizona – and may already have occurred – because the statute does not waive its strict requirements in the event of fraud.  In fact, in 1971, then-Attorney General Gary K. Nelson issued an opinion recommending that the putative father registry statute be amended to require notice to all fathers whose identity is known when an adoption proceeding is initiated.  Op.Atty.Gen. No. 73-5-L.  Unfortunately, it appears that the Legislature ignored Mr. Nelson’s advice and still requires strict compliance with the onerous requirements of § 8-106.01.

As a result, one need not be a legal mystery writer to imagine the potential for a pregnant woman to accept the help of the baby’s father until shortly before childbirth and then dodge service of the paternity petition (assuming the putative father even receives notice of the adoption or manages to register in time).  The mere possibility of this result, let alone its apparent likelihood, is preposterous in today’s sophisticated world of family law.  Unfortunately, as long as states rely on antiquated notions of legitimacy and parental rights initially formulated almost a century or more in the past, the ability of well-meaning fathers to protect themselves will be handicapped.

Accordingly, the best way for an unwed father to protect his parental rights is to register before the baby is born notwithstanding his trust in the mother.  Admittedly, this advice is not helpful to an unwed father who does not learn of the pregnancy in time, either through mistake or misconduct by the mother, but early registration remains the best way to protect paternity rights.  That said, existing putative father law in Arizona and other states is not particularly effective at protecting the rights of fathers who want to be involved in their child’s upbringing.


When Arizona Foster Parents are Ready to Adopt – A Rare Opportunity for a Free Lawyer

I received a call the other day from a potential client and her partner.  They had been fostering a child through a CPS placement for almost 19 months.  The baby was just three weeks old when he was placed in their care.  The first few weeks of his life were spent in a hospital.  The birth mother had limited prenatal care and the baby was born as a S.E.N. (Substance Exposed Newborn).

Although foster training taught the moms that their obligation was to nurture the child until reunification with the parents occurred, as with many loving foster families, they fell in love with the baby after welcoming him into their Gilbert home.  Notwithstanding the drug exposure, he was thriving in their care.

Sunglasses Baby

The foster moms went to every Dependency Hearing and even attended the Foster Care Review Boards.  The biological mother appeared at the court hearings and proclaimed a desire to be reunited.  Her numerous missed TASC drug tests told a different story.  Her erratic behavior and failure to attend a court-ordered psychological evaluation coupled with an arrest for possession of drug paraphernalia certainly did not help her court appointed attorney present a defense or argument to expedite the reunification.

Meanwhile, the CPS case workers constantly changed.  There was an investigative worker, an involved supervisor, and three others since the baby had been in the State’s care.  Fortunately, no one ever mentioned removing the child from the foster parents.  There was never a biological father identified (referred to as a “John Doe”) and mother’s family was uninterested and/or equally enmeshed in methamphetamine culture.

Ultimately, the biological mother’s rights were terminated (she was pregnant again at the Severance hearing).  Now, six weeks after the severance hearing, the foster mom was meeting with an attorney for the first time to see what needed to happen.  Foster Mom, who is a physician in Chandler, was eager to pay my office to tie this up and complete this adoption so that they could get back to normalcy and so that she and her partner would not have to deal further with CPS, court hearings, Foster Care Review Boards (FCRB), etc.

As her check book came out on my conference room table, I had the rare pleasure of telling the moms that this would be free for them.  Pursuant to rules regarding ‘non-recurring adoption expenses’, the legal fees for the adoption can be paid by our Uncle Sam, irrespective of the financial situation of the parents.

Sports Kid

Our law provides that, in the case of CPS placement adoptions, non-recurring adoption expenses are reimbursed (paid) by the government.  What this means is that, once a Parent’s Authorization for DES to Reimburse Attorney Directly form is signed and other basic pleadings filed, the adoption can proceed through its conclusion without the adopting family incurring costs.

To be clear, this only applies to CPS placement adoptions in Arizona.  Qualifying placement adoptions require that the child is legally free for adoption and cannot or should not be returned home, the child experiences of one numerous broadly defined special needs, and the adoptive parent cannot adopt without a subsidy.    Most other situations, such as private severance actions, step-parent adoptions, and second-parent adoptions, still require direct payment to the attorney.

Still, the availability of government reimbursement for some adoptions contributes substantially to the placement of children with wonderful parents without the added burden of adoption expenses.  The joy felt by a newly recognized adoptive family is something for which every Arizonan should feel pride.


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.

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:

CPS Under Scrutiny for Placement in Colorado City

Child Protective Services (CPS), the state agency responsible for protecting the safety and welfare of vulnerable children, is one of the most embattled sectors of our local government.  Understaffed and underfunded, CPS struggles with the ever-growing task of investigating child abuse, finding homes for children who need them, and other related tasks.

woodnickArizonans for Children, Inc. reports that emergency shelters regularly harbor 1,300 children for three weeks or more while they await placement in homes.  The need for qualified foster parents exceeds availability, so CPS, although careful to select safe places to send children who need care, sometimes makes controversial decisions. reports that Mohave County Supervisor Buster Johnson asked Gov. Jan Brewer and Attorney General Tom Horne to help return a child to Lake Havasu City, where his mother currently resides.  The child was separated from his two brothers, who are currently in Prescott, and was himself placed in the care of Dan Wayman, a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) in Colorado City.

The FLDS Church, situated in numerous enclaves along the Arizona-Utah border, has garnered national attention over the course of many years for its policies, which include polygamy.  Supervisor Johnson believes that CPS should not permit foster care or adoptions in Colorado City, where he says arranged marriages and family-run businesses lead to spousal and child abuse and underage labor.

Meanwhile, Dan Wayman has one adopted son and is licensed to care for up to five children.  According to Johnson, CPS is considering placing the child’s brothers in the same home in accordance with an overarching policy to keep families together where possible.

Children can be placed under CPS supervision for a many reasons, including being abandoned or being removed from parental custody after becoming victims of abuse.  CPS attempts to place such children with relatives if possible, and subjects potential foster and adoptive parents to a licensing procedure before approving their application to care for children.


Although CPS investigates the mental health, history, and lifestyle of prospective caretakers, there are simply too many variables to consider – and too great a need for more open homes – to guarantee that every foster parent is qualified.

Most caretakers are highly qualified and perform their duties admirably, but sometimes children are moved from one dangerous situation to another when they are removed from their homes and placed in foster care.  In addition, mistakes can sometimes lead to children being taken away from loving parents whose mistakes do not warrant such drastic measures.  In those scenarios, placing a child in a potentially harmful foster care situation would be a tragedy, particularly if the allegations leading to the child’s removal turn out to be false.

The laws governing Child Protective Services and the scenarios in which their duties are triggered can be complex.  Criminal, family, and other unique areas of law often intersect in CPS-related cases, creating a mired field of complicated legal issues.

What to Wear in Court

A court summons, whether for reasons as mundane as jury duty or as tense as an arraignment hearing, raises many questions.  One common concern for anyone going to court is, simply put: “What should I wear?”  The answer to that question not always as simple as it should be, but here are some guidelines which may help:


Dress in a way which shows respect for the court.  One of the worst mistakes that you can make is to appear as if you do not take the proceedings seriously.  Never walk into a courtroom wearing the same outfit that you wore to the Cardinals game in Glendale.  “Business casual” dress is the minimum standard which is appropriate for any court hearing, and the specific circumstances of your case may require more.  Remember: judges and jurors are people – no matter how seriously they feel about neutrality and deciding cases on the merits of the arguments, the message that you convey to them with your appearance affects their decisions.

Avoid wearing shocking colors and gaudy accessories.  This is one lesson that Lindsay Lohan still has not learned, and it should not be a mistake that you and the embattled Hollywood star share in common.  Wearing flashy jewelry, exotic materials, and bold colors is, at best, distracting.  At worst, they may annoy conservative judges and alienate jurors.  Cases should be decided based on the facts and arguments, and it becomes much harder for fact-finders to focus on those things if the defendant is wearing diamond-encrusted gold chains and a bright yellow blazer.


Consider covering up tattoos and other body modifications.  The Arizona Supreme Court recently declared that tattoos are a protected form of speech under the First Amendment.  Unfortunately, that sentiment is still lost on many individuals – individuals who may be involved in deciding your case.  Although tattoos or exotic piercings cannot be the official basis for decisions (except in extremely rare circumstances), they may be distracting or objectionable to judges or jurors.  If a juror wastes even a few moments wondering whether it hurt when you had your labret pierced, they may not hear an important admonishment offered by your attorney.  Perhaps this paragraph will become superfluous in a few years but, in the interim, do not let your body art get in the way of justice.

Ultimately, court dress decisions are yours (and your attorney’s) to make, but to ignore the potential impact of those decisions on the outcome of your case is a significant risk.  A well-prepared attorney will consider everything that goes into your case, including the effects of your attire.  Rather than simply picking a pair of slacks, a shirt, and a tie, then hurrying off to court, ask your attorney whether their strategy includes a particular style of dress.

Adoption Tax Credit

Adopting a child can be tremendously costly because of numerous legal issues which must be navigated in addition to collateral expenses.  A complicated adoption may require a ‘contested’ termination proceeding (severance) that requires experts and an exhausting trial.  Fifteen years ago, the U.S. tax code was modified to include an ‘adoption tax credit’ in the amount of $12,650 to help families absorb the costs of an adoption.

The credit will expire at the end of 2012 for all adoptions except those of foster children with special needs, leading many to call for renewal of the credit.  The adoption tax credit is one of several mechanisms intended to help close the gap between children who need homes and prospective parents who can afford to raise a child, but cannot afford frontloaded legal expenses.

Some still question the tax credit.  Critics have complained that the tax credit helps to fuel the foreign adoption market (which has historically been a hotbed for exploitation).

To learn more about the perils of limited disclosure in foreign adoption, read the article at here.

All agree that foster children need good homes, and there are many people who are willing but unable to provide them because the costs are so high.  Whether a tax credit or some other method is the best way to connect those people with children who need homes, creative solutions are needed to reach the goal of leaving no child without the care they need.

CPS Database Glitch Causing Headaches

In June, the Arizona Department of Economic Security (“DES”) discovered a glitch in the computer program that Child Protective Services (“CPS”) uses to disclose records and information about pending cases and investigations.

Statistically, the scope of the glitch is staggering.  According to one Arizona Republic report, DES sent out over 30,000 notices to attorneys, parents, law-enforcement, and media members.  Those notices pertain to 11,336 separate records requests since August 2010, but the notices are not specific as to the nature of records which were erroneously withheld.  DES officials estimate that about two-thirds of the requested records were erroneously withheld.

Although some of the withheld records are redundant with the information which was disclosed, DES has issued no guidelines as to what type of information was not disclosed.  DES has declared that their legal obligations to disclose the glitch have been met, and that it is now up to attorneys to follow up on the notices they have received and determine whether a request for more information from DES is appropriate.  Some attorneys have received hundreds of notices, so the amount of work necessary to re-open and investigate each case is burdensome, at best.

DES insists that the most important cases are those which recently concluded or are currently pending (over 8,500 child-dependency cases are currently pending in county courts).  Limitations on the timeliness of challenges to these decisions, particularly in finalized adoption cases, dramatically increase the importance of quick responses by attorneys and families who may not have received important disclosures while their cases were pending.

Furthermore, many people who sorted out their claims in Family Court were not represented by attorneys – it is even more difficult for these individuals to learn whether the withheld records would have made a significant difference in the outcomes of their cases.

This disclosure glitch is highly reminiscent of the so-called “Arizona DUI Data Dump Fiasco” of the late-1990s, in which undisclosed changes to the Department of Public Safety’s “Intoxilyzer 5000” machine’s computer databases led to five years of critical calibration and other information being withheld from DUI defendants and their attorneys.  The “Data Dump” led to years of litigation and thousands of successful petitions to suppress breath tests on the basis that the State had withheld or destroyed evidence that might have proved exculpatory to defendants.

Perhaps the most troubling fact about the CPS glitch is that no one is certain whether the withheld information would have significantly impacted cases.  Some of the information was likely no different than what was contained in the records which were properly disclosed, but many other records were never revealed to attorneys representing families, defendants, and other claimants in CPS-related cases.

Going forward, DES officials expect that this glitch will require a tremendous amount of resources as more and more attorneys request the disclosure of wrongly withheld records.  For anyone whose case was resolved over the course of the past two years, it is wise to contact an attorney who might investigate further.  Time is of the essence, and only a case-by-case examination of withheld records will reveal if the CPS glitch materially affected your outcome.

To read the Arizona Republic’s report on the CPS database glitch, click the following link:

Foreign Adoption: A Tragic Ending to a Happy Story

The nature of my practice exposes me to stories that you would not believe.  Some of them play out like Lifetime Television movies.  When the story ran in the New York Times about the Russian adoptee who was simply put on a flight back to Moscow when the adoptive parents decided it ‘wasn’t working,’ it made front page news.   Sadly, unsuccessful foreign adoptions do happen and sometimes with horrific consequences.

I am sharing this hypothetical which is based on nearly identical events that have occurred in a number my cases.  Despite thousands of miles of distance between the countries of origin, the stories are strikingly formulaic:

1. A loving couple in Phoenix, Arizona wants to grow their family through adoption.

2. They are open minded and willing to adopt older children from other countries.

3. They are willing to adopt a sibling group.

4. An adoption agency presents them with pictures of the sibling group and some rudimentary information about the children.  They learn that the siblings have a common Mother but different fathers who have abandoned or are otherwise unable to care for the children.

5. The family flies to an impoverished country to visit with the children they have only seen by picture.

6. The children do not speak English, but they are starved for attention that they deserve and quickly the adoptive family is smitten.

7. The adoption agency, ostensibly in conjunction with the foreign government, provides further information regarding the children’s history. 

8. Through the legal process, the children are adopted and come to live with their new families in America.

9. For many of Arizona’s adoptive parents, this is the best decision of their lives. But for some, this is the beginning of a nightmare. 

10. Parents start noticing behavioral issues that go beyond the language gap.  They ask their pediatrician for guidance and are referred to behavioral specialist.

11. There a preliminary diagnoses such as R.A.D.  (Reactive Attachment Disorder).

12. Parents start to reconcile that this is not going to be a problem that is fixable with simple behavioral modification or medication.

13. Then, the parents learn that the older child has been sexually abusing a younger sibling.  The police are called and CPS begins their investigation.

14. Quickly it is determined that the younger child is at grave risk while in the presence of the older sibling and CPS will intervene with a Dependency action through the Court.

15. During the investigation the child discloses he has perpetrated not only on the sibling, but on neighborhood children since moving to America.  It is also confirmed that he was sexually abused while in his native country.

16. Court hearings for the Dependency/CPS matter will be scheduled and CPS reunifying the family may be impossible.

This story is not meant to discourage adoptions.  It is intended to remind parents to fully contemplate the adoption commitment.   You cannot simply send the child home as the parents did with the Russian boy.  Adopting parents must demand full disclosure.  If it is remotely possible that the children were sexually or physically abused, you need to consult with a local psychologist with an expertise in these issues and line up qualified therapists to proactively address the psychological damage done to the child who was likely sexually victimized themselves. 


If you are interested in reading the New York Times adoption article, I have provided the link below.

Read Here.