Did the DCS/CPS Caseworker Really Just Tell Me That I Don’t Need a Lawyer?

Something that has confounded me since day one of practicing law in Phoenix, and all throughout the state of Arizona, is that DCS case managers frequently tell parents they are investigating for child abuse or neglect that they do not need a lawyer.  Sure, the early stages of their investigation may not involve the Juvenile Court or the DCS lawyer (Arizona Attorney General’s Office), but it does involve the parents’ constitutionally protected, fundamental right to parent their children.

There are many stages to a DCS investigation. From the child abuse hotline report, to the initial contact with the DCS worker, to a meeting involving “all interested parties”, to possibly the Juvenile Court making decisions about where a child should be placed – all of the stages involve a parent (or two) and a child. One of the early stages is called a Team Decision Making meeting or “TDM”.  TDMs involve state workers, supervisors, and possibly law enforcement. But too frequently we hear the parents have been told they “don’t need a lawyer” or if they bring their lawyer they will not hold the TDM for the family.

Talk about being stuck between a rock and a hard place – DCS telling a parent they want to meet regarding abuse or neglect allegations (which may result in the child being removed from the parents’ home), but if the parent brings a lawyer DCS will just make their decision without the parents’ input.

Not bringing a lawyer to the TDM is the wrong decision. Many times at a TDM, DCS has already investigated and gathered a lot of damning evidence on parents. The TDM is being held to confront the parents on the evidence DCS has gathered.  Anything a parent says in the TDM can and will be included in a report to the Juvenile Court, if a Dependency is filed.

To show how important parents’ fundamental rights are, free attorneys are appointed if a Dependency is filed and a parent cannot afford an attorney (DCS takes legal custody of a child).  Free lawyers are NOT provided in Family Court, where custodial decisions are generally made between two parents.  However, waiting until a Dependency is filed may be too late.  Retaining a private attorney to help navigate the initial stages of a DCS investigation can be a prudent decision well worth the cost.

Lawyers play a vital role throughout multiple stages of cases, despite the opposition form other parties. The world of law is a tough world to navigate and with the right help from the right attorney, the process can become an easier one to understand.

By: Brad TenBrook

Life-Altering False Allegations

A long-time client was recently accused of inappropriately touching his daughter while she bathed.   I handled the original custody matter when the child was only six (6) months old.  My client, we will call him “Mike,” and the mother of their child, we will call her “Sarah,” were never married. They had an on-again, off-again relationship and lived together for a brief time in Scottsdale before breaking up.  Sarah found out she was pregnant a few weeks after Mike asked her to move out of his home.

Their relationship was not overly tumultuous (at least from the perspective of an attorney who routinely handles high-conflict Family Court cases in Maricopa County).   There were no reported domestic violence incidents, but Mike did have a possession of marijuana charge prior to the relationship. Again, nothing too dramatic. They were pre-gaming before a Rodger Clyne and the Peacemakers concert in Phoenix, where he was arrested for possession of a small amount of weed.   Other than that, and a few inconsequential traffic infractions, my client did not have a noteworthy legal history.

Sarah was bitter that the court gave Mike parenting time equivalent to 3 days a week.  Her anger subsided when Sarah and Mike briefly rekindled their relationship during a few parenting time exchanges.  In retrospect, it was a bad idea, as Sarah thought that the sexual relationship meant more than Mike did.  Around the same time, Mike, who was a medical resident at the time the matter started but was now a credentialed pediatrician, moved into a home in Paradise Valley.

A few months after their last fling, Mike began to date someone and the relationship became serious and exclusive in the following months. His girlfriend, also in healthcare (a dentist), moved into the PV home and they were engaged     shortly thereafter.

The now-fiancée spent some time with the child, and they had a healthy and blossoming step-parent relationship.  She would occasionally watch the child in the evenings if Mike had an on-call issue and had to go to the hospital.  It was a good situation and continued to improve as the couple planned their Mexico wedding.

Then, about 6 weeks before the beach wedding, things started to escalate with Sarah.  Mike needed the child’s passport to bring her to the wedding.  Sarah balked, claiming that Cancun was unsafe because it is “in Mexico.” My office was re-engaged to deal with the passport issue and to get the Parenting Coordinator and Family Court to address the issue on an expedited basis.   Although we quickly cleared up the passport issue, what should have been the next happy chapter in Mike’s life was about to turn into a nightmare.

About 2 weeks before the wedding, a police officer knocked on Mike’s front door and asked to ‘talk’.  According to the report, Sarah claimed that their daughter had been ‘touched’ by him because the child, barely 3 years old, had some sort of vaginal irritation.   My client snapped at the officer, livid that he was being accused of inappropriately touching his daughter.   He calmed quickly and excused himself from the conversation to call me.  (It was late in the evening and he managed to track down one of the attorneys in our office by cell phone.)

Mike was advised not to discuss the matter and demand to speak to his counsel.  The officer respected the request and may have realized that there was something odd about the allegation.

CPS, however, advised Sarah that she should not let Mike have parenting time “while the investigation was opened.” So, she filed an emergency petition seeking to suspend his parenting time because he “had molested my daughter.”

The court granted the request ex parte (without giving notice or a chance to be heard to Mike).

We scrambled.  I have handled false allegations (and not-false allegations) many times and knew that we needed to get the medical records and find out about any disclosures made by the child.   The irritation, according to not only her primary care pediatrician but also an expert forensic examiner, was nothing more than irritation from toilet paper from a child learning to clean herself.

Then, we reviewed the forensic interview of the child.  She seemed beyond coached,
inconsistent, and incoherent.   Ultimately, the police found “no cause” to charge Mike and CPS unsubstantiated the allegation, but the wedding was postponed and Mike was traumatized by how close he was to facing substantial prison time on a felony conviction based on nothing more than Mother’s naked allegation.

Everything was on the line for my client – his relationship with his daughter, his medical license, his reputation – all for Mother’s revenge.

I share this story because this situation far too common. Police, DCS agents, and sometimes even Superior Court Judges often react first and reason later in child abuse allegation cases because no one wants to guess wrong and wind up on the front page of the Arizona Republic if a child is harmed. Understanding the process and helping educate the Courts (and sometimes the “experts”) is critical to ensuring that false allegations are disproven and the collateral damage is minimal.

See also “Whose Team are they on?  CPS Removal and TDM Meetings”

Calling the Police and What To Do When They Arrive

Michael Brown. Eric Garner. Debra Harrell.

These are the three names that Yale Law fellow Emily Bazelon gives as examples for her police-averse policy in her Slate article, “Why I Don’t Call the Police.”

In the article, Bazelon explains that her experience as a journalist and studies of law enforcement statistics strongly indicate that, “… if the criminal justice system gets a hold of a black person, especially if he is poor, there is a terrible, heightened risk that it will try to crush him.”

Bazelon cites numerous instances, including the cases of the three people named above, in which police treatment of black individuals triggered intense national debate about the role that race plays in contemporary law enforcement.

Eric Garner was killed when Officer Daniel Pantaleo used a prohibited chokehold restraint to subdue him and failed to administer cardio-pulmonary resuscitation (CPR) until seven minutes after he stopped moving.  Pantaleo was sued twice for alleged arrest- and abuse-related violations in 2013.

Debra Harrell was arrested and charged with felony “unlawful conduct toward a child” after police responded to a call and found her 9-year-old daughter at a park while her mother worked at a nearby fast food restaurant.  The girl, who had a cell phone and house key, was six walking minutes away from home and was not in apparent danger.

Michael Brown was shot and killed after an encounter with police. Brown was not armed and bystanders indicate that he did not threaten or otherwise provoke the officer who shot him.  Although details remain scarce, the St. Louis suburb of Ferguson, Missouri is now filled with police officers carrying military-grade equipment, callously opportunistic looting, and tensions growing with each passing day.

These cases are exceptional, but still too common. Gene Demby writes that 4,813 people died between 2003 and 2009 during or soon after arrest attempts, with 60 percent of those deaths classified as homicides.  Bazelon acknowledges that the statistical likelihood of an arrest-related death is low, with 98 million arrests made during the same period, but calls the number “scary” in light of the ways that police departments appear to avoid publication of similar incidents.

Ultimately, Bazelon will “try to choose not to” involve police in the life of a black person if she can avoid it.  Many people share her sentiment, electing to attempt various forms of self-help before calling the authorities to respond to crime.

In some communities, people markedly avoid calling police, instead practicing “self-preservation” and often relying on local faith leadership to help them cope with harm they have suffered.  Columbus Police Commander Bob Meader acknowledges that people in inner-city neighborhoods, in particular, are typically more interdependent and “tolerate things in different ways” than people in suburban areas.  Meanwhile, ubiquitous media coverage and sensationalized commentary from all angles creates additional fear, confusion, and confrontation among observers, pushing more communities to look inward for help.

Whether institutional bias pervades police departments to the extent writers like Emily Bazelon suggest, or the wounds of violence in some communities are largely self-inflicted, the reality that many people cannot interact with police officers without panicking is a dangerous problem.

So, what should you do if the police stop you?  If you witness something dangerous, should you call the police?

1. Your life is more important than your attitude, so don’t argue with an officer.

Whether the cop who stopped you is one of thousands of respectable officers of the law who will perform his duties admirably or one of the dangerous few who could make a lethal mistake, there is simply no reason to risk escalating a stop into a verbal confrontation (or worse).  It is imperative to remember that police officers constantly endure tremendous stress and forcing an officer to decide whether you could threaten his safety is a losing proposition.  When an officer stops you and wants to talk to you, speak to him as you hope he would speak to you if you wore the uniform: in a calm, respectful tone without cursing or shouting.

2. Comply with the officer’s orders and let him do his job.

Police officers responding to a possible crime have two primary goals: (1) restoring peaceful and safe conditions, and (2) investigating whether a crime has occurred and securing evidence to make an arrest, if necessary.  If a police officer witnessed an infraction, which is nearly always the case for traffic stops, then his decision whether to arrest you will not be positively influenced by a spirited debate.  Police officers are not prosecutors, judges, or your parents – trying to argue your case to them puts your safety and your legal rights at risk.  If you believe the officer is mistaken about whether you violated a law, you may politely explain yourself, but remember that whatever you say could be construed as a confession.  Attempting to combat an officer’s decision to arrest you by verbally or physically resisting will almost certainly result in graver legal consequences and could spiral into a violent altercation that you cannot win.

3. Respond to basic questions, calmly refuse searches, and do not speak if you are placed under arrest.

Police are legally justified to engage anyone in consensual conversation, and can stop a person for a reasonable amount of time with articulable suspicion that the person is engaged in some criminal activity, including traffic violations.  Police may ask your name if the stop is justified, and it is generally advisable to comply rather than dispute the reasonable basis for the stop.  Police are also permitted to ask for your consent for a search, and may even suggest that they “already know” what you are hiding.  If an officer asks to search you, your vehicle, your home, or other property you control, you can always politely refuse.  Your refusal cannot be used against you, and if the officer proceeds without consent, whatever he finds might be excluded in court if you are later charged.  The most important thing to remember is that police misconduct can be corrected in court.  Unfortunately, however, the court cannot correct the pain or disability of injuries you suffer if a police officer, fearing for his safety, uses force to subdue you.

4. If you witness a crime or think someone is in danger, call the police.

In perhaps the most famous misguided self-help case in recent history, George Zimmerman attempted to apprehend Trayvon Martin himself instead of waiting for police to arrive.  Zimmerman killed Martin, but was eventually acquitted of first-degree murder because the jury believed he acted in self-defense.  Regardless, Martin is dead and Zimmerman’s life is forever changed for the worse.  The lesson to be learned from Zimmerman is that your life and the lives of everyone else involved are imperiled if you don’t seek professional help for dangerous situations.  Just like you would call the fire department if you saw a burning house, you should call the police if you see someone breaking in through your neighbor’s window.  In the overwhelming majority of cases, police officers perform helpful and necessary work for the community and can turn dangerous situations into peaceful resolutions.

The Constitution can protect you from injustice, but not from loss of life.

The Fourth, Fifth, and Sixth Amendments provide the backbone of criminal procedure and guide police practices whether the officer and suspect know the rules or not.  If an officer arrests you without cause, forcefully interrogates you without proper advisement of your rights, or denies access to counsel, the judge assigned to your case will unravel the damage to the extent possible under the law.  Judges cannot unravel injuries or death resulting from violent confrontations with police, however, no matter how extreme the conduct.  Don’t put your safety or that of the people around you at risk by forcing an officer to react to your conduct.  Instead, let your lawyer and your constitutional rights do the talking.

Children Saved from Hot Car

It’s scary to think that anyone would leave their children locked in a car during the summer months. Recently, a Texas mother did just that. She went to get her hair cut at a salon and left her children in the car.

Shoppers at the center heard children crying and quickly found the two children locked in the car. What would you do?

After hearing the cries of the children, a few people passing by knew they had to do something. Thinking they had little time to spare, they busted the window of the car and soon had the children out in fresh air. The mother came out to see what the commotion was about and realized what was happening. She begged the crowd not to call police and no one had. Hopefully, this was a lesson learned for the Texas mother and she will not leave her kids in the car again.

This could have been a very tragic story. Things like this happen all too often around the country. We have heard numerous stories this summer of children being left in cars. Recently, Shanesha Taylor left her children in a car while she went in for a job interview in Scottsdale, Arizona. Luckily it was not during our hottest summer months in which temperatures are known to reach over 110°, but Ms. Taylor was charged with felony child abuse. Leaving a child in a locked car in the summer is a serious offense and very dangerous to children, especially here in Arizona. It is important to remember not to leave your children in the car even for a “quick” errand. Take the extra three minutes to unbuckle them and bring them in with you.

Clerical Miracle?

In a bizarre clerical error, a man convicted of robbery never saw the inside of the cell he was supposed to occupy. Cornealious “Mike” Anderson waited for his day to come. The sentence was given and he was ready to turn himself in, only Anderson never heard back from court officials. He contacted his attorney and still heard nothing.

Over 13 years later, when Anderson’s sentence was due to end, authorities realized he had never been in their care. In an attempt to correct the error, U.S. marshals picked him up at his home and took him to the facility in which he should have spent the last 13 years.

However, it turned out that after his courtroom scare, Anderson turned straight. He started a business, got married (twice), had three children, and even volunteered as a coach.  He became an exemplary citizen without having served any time.

After hearing the unusual circumstances, the Missouri Judge decided Anderson deserved credit for the “time served.” The time he was supposed to be in prison, according to the judge, now counts toward his sentence, essentially freeing him without jail time.

The current criminal system attempts to serve several purposes: incapacitation, retribution, deterrence, and rehabilitation. The fact of incarceration prevents the offender from committing further crimes during the sentence. Retribution looks to punish the offender ostensibly based on the seriousness of the crime. Deterrence is set to deter people from committing crimes in response to the threat of punishment. The rehabilitative goal is to reform the offender into a law-abiding citizen. One of the most common occurrences to imprisonment is recidivism. Within 3 years of release, according to the Bureau of Justice Statistics, almost 50% of persons released are re-incarcerated.

In Anderson’s case, it seems just the thought of a 13 year sentence scared him straight. Though nothing like this has happened in Phoenix (at least, to the best of our knowledge), surely it would produce a similar result. Anderson turned his life around and became an upstanding, productive member of society. His success in life may have been due to the fact that he did not go to prison. In fact, not being incarcerated may have been what prevented him from returning to prison later in life. There was no need for him to resort to a life of crime once he was released. Many convicted persons resort to criminal behavior upon release because they have no other way to support themselves. Justice would not have been served to put him behind bars after 13 years and such a positive and successful life.

Whose Team are they on? CPS Removal and TDM Meetings

A CPS investigation is beyond frightening. What are your rights? Why does it seem like the investigator is interrogating me?  The investigator keeps saying that this is not a criminal matter, but do I need a lawyer?  Do I have to answer the questions the caseworker is asking?  What is this Team Decision Making meeting and who is on the team?

Frequently, CPS receives allegations of abuse either through the 1-888-SOS-CHILD hotline or they are contacted by police officers when there are children involved in a related or unrelated investigation. CPS, using their internal protocols, determine whether the information requires further scrutiny. If they determine further inquiry is warranted, an investigation is opened and the case is assigned to a caseworker or “specialist.” The caseworker then meets with the child, interviews the parents, and coordinates with the police to ultimately determine whether the child is safe in their current living situation or if a “removal” is necessary.  If they believe it is an emergency situation, DES/CPS will serve a Temporary Custody Notice on a parent and take the child for 72 hours while they continuetheir investigation.

At the point of removal, CPS has 72 hours to either return the child, develop a “safety plan” approved by the parent, or file a Dependency action requesting the Superior Court place the child in CPS legal care pending further court hearings. During this 72 hour period CPS contacts the parent and invites them to participate in a “Team Decision Making” meeting (also known as a TDM) at the local CPS office. Often times the meeting consists of family members, friends, the case worker, service providers and sometimes the police.

 

What are my rights during the TDM?

Foremost, the name is a misnomer and tremendously misleading to parents who are being accused of abuse or neglect.  The implication is that everyone around the table is part of the “team” and the parents are there to assist in the decision making process. The facilitator of this “team meeting” is a CPS worker and often times CPS has already made a decision about bringing the matter to court before the process has even begun. In some cases, the paperwork has already been drafted and is ready to be filed with the court to begin the Dependency action. Designating this a “team” meeting when the parents are walking into this trap is like leading a pig to the slaughterhouse and calling it a vacation.

Parents should immediately seek legal advice from an attorney once a child has been removed and prior to any meetings with CPS. When parents are contacted about this TDM meeting they are often told they do “not need” an attorney present or they are “not allowed” to have an attorney present. However, these meetings could be very detrimental to the parents’ rights and the case about to begin in court because statements made during the TDM meeting can be used against the parents.  We have even seen cases where CPS invites the police (who are still gathering data in efforts to charge the parents with a crime) to attend the TDM meeting.  The police officers that attend the meeting will just sit there gathering information that can be used in related criminal prosecutions.  

 

Having an attorneys’ advice before making any statement to CPS or the police is critical. An attorney can help protect the right of the parent to keep the child in their home and dispute the allegations made against them. 

Parents’ Medical Nightmare

The Pelletier family is going through every parent’s worst nightmare. Their 15-year-old daughter, Justina, has been struggling with a rare disease that could lead to death. There is no cure for this disease, but despite the bleak prognosis, the Pelletier family has been seeing the best doctors on a regular basis in an attempt to treat their daughter.

During one of their most recent attempts to seek the best medical care available for their daughter, they were met with a series of unfortunate events. The Pelletier family had been bringing their daughter to Tufts Medical Center where she was being treated for Mitochondrial disease, which is a disease that attacks the mitochondria inside cells in the body. According to UMDF.org these organelles give the body 90% of the energy needed to “sustain life and support growth.” As the disease progresses, more and more cells begin to die and eventually entire organs cease functioning.

Justina began experiencing gastrointestinal problems, while under the care of physicians at Tufts for her disorder. The treating physician at Tufts recommended she see a gastroenterologist for the issue. Justina had previously been seen at Boston Children’s Hospital (BCH) by Dr. Alejandro Flores, a gastroenterologist, and her treating physician thought sending her back would be in her best interest to address the gastrointestinal issues.

The family was unable to take Justina in their car because the East Coast was experiencing horrible weather conditions and her wheelchair would not allow easy transportation in the snow. Justina was sent to BCH via ambulance and was forced to enter through the emergency room, despite the fact that she was there to see a specific doctor.

Once she entered the emergency room, everything changed. The doctor who admitted her refused to allow her to see the doctor to whom she had been referred and, after a brief consultation, determined she was suffering from psychosis rather than mitochondrial disease. The doctor then brought in a psychologist who diagnosed her with somatoform disorder, which causes the body to produce symptoms of a disease without identifiable physical cause. No further medical testing was done to determine if the original diagnosis of mitochondrial disease was accurate.

Instead, the doctor at BCH insisted that the parents cease medical treatments with the other hospital because he thought it was unnecessary. When they refused to do so, BCH contacted the Massachusetts Department of Family and Children (DFC), alleging the family was medically abusing their daughter.

Since then, DFC has taken custody of Justina and received permanent custody of the teen pending further hearings. The judge in the case has been frustrated with the parents’ lack of cooperation and has chastised them for making the case more complex. The parents violated a gag order put in place by the judge on the case and spoke with the media to get attention for the case in hopes that people would gather in support. This seemed to have the opposite effect where the judge was concerned, though the parents felt they needed to shed light on this injustice. Since then, the public has rallied in support of the parents, but the judge is less than pleased.

One can hardly blame the parents for being irate: their child was taken from their custody and refused the medical treatment she desperately needs. At this point the parents are afforded a weekly meeting with their daughter and have had to watch as she slowly deteriorates from this horrible disease. She has not been given the opportunities to attend any religious ceremonies nor has she been provided the education that other children her age are privy to. She is now two years behind her peers in school and her medical condition has only gotten worse. This case has been ongoing for over 13 months and there is still no end in sight.

One would hope that this situation could never happen, but the reality of it is sometimes Child Protective Services (the name of the analogous agency in Arizona) gets involved in cases where they are not needed. Though they must respond to these allegations, it is the hope of every parent who has a child with a rare illness that, once the report has been documented and investigated, the allegations will be dropped.

In Tempe, as well as around the state, Child Protective Services (CPS) can get involved in allegations of child abuse in many ways. Usually, an allegation is made through the CPS hotline, but CPS can also become involved if police are investigating an issue that involves children. According to A.R.S. 13-3620, certain people are “mandatory reporters.” These reporters are mandated by state law to report any reasonable suspicion they have of a minor being abused. Every state has these laws and it is likely Massachusetts has a similar law in place. Physicians, in Arizona as well as most states, are among those who are required to report these reasonable beliefs of abuse. For example, if a parent brought a child into Phoenix Children’s Hospital and the treating physician noticed bruises on the child’s back, but was treating a broken arm, the doctor may have a reasonable belief the child is being abused and contact CPS.

When CPS receives an allegation of abuse, such as the allegation made by the doctors at BCH, they follow internal protocol to decide whether the allegation needs to be investigated further. At this point, it is important to have any information regarding a rare disease available. Making sure everything is well-documented can be a parent’s saving grace. Though it does not always stop CPS from initiating an action to remove the child from the parent, it can be very beneficial when it comes time to face a judge.

Once a child has been removed, it is often a significant legal battle to get the child returned, and this process can take a substantial amount of time. We cannot assume the facts of the case, especially in this matter; however, often once it has been shown that a child has a rare disease and was being given the best of care, the courts respond by returning the child to the family. It is ghastly to think something like this could happen in Arizona, but it is a reality that parents with children who do not have well-known diseases often face.

For more information on CPS Removals click here.

Former NFL Player Indicted

Former NFL player Darren Sharper, was indicted for sex-related offenses that occurred in Tempe, Arizona. The former star is alleged to have used Ambien to drug women and sexually assault them while they were passed out.

Under A.R.S. § 13-1406, if convicted, Sharper would face a minimum of 5.25 years in jail. The statute provides a sentence enhancement of 3 years for persons who use flunitrazepam, gamma hydroxy butyrate or ketamine hydrochloride without the victim’s knowledge during the course of a sexual assault; however, Ambien may not fall into that class. The sentence, if he is convicted, could be further enhanced if he has been convicted of prior felonies. The minimum sentence for someone who has two prior felonies would be 14 years.

Sharper has been accused of many similar cases in other states including California and Nevada. Several jurisdictions have already filed charges and are all looking for their turn to prosecute.

Munchausen by Proxy?

It’s a tragic story. Garnett Spears, a 5-year-old boy, was given deadly amounts of sodium through his feeding bag, allegedly by his mother.

After beginning treatment, hospital tests revealed unusually high amounts of sodium in the boy’s body, which accounted for his neurological symptoms. With this bizarre finding, the doctors at the hospital immediately notified CPS, who began an investigation into the matter.

In Arizona, according to A.R.S. § 13-3620, it is mandatory for treating physicians to report any reasonable belief that a minor is a victim of physical injury or child abuse. For instance, if a Mesa mother brought her son to Cardon Children’s Medical Center with burn marks that appeared to be caused by a cigarette, they would likely contact CPS to investigate the incident.

New York has a similar law, NY SOC SERV § 413, which states that physicians are required to report if a child has been maltreated or abused and has come to them in their official capacity. The doctors in this matter saw a red flag in the unusual test results and knew they must report the incident immediately.

While the boy was in the hospital, his mother called a neighbor to dispose of his feeding bag. The neighbor, suspicious of the odd request, decided to retrieve the bag but instead of disposing of it, turned it over to investigators looking into Garnett’s death.

When the authorities received the feeding bag from the neighbor it was tested to determine if he was being fed the high amounts of sodium through the feeding bag inserted into his abdomen. Tests revealed the bag indeed contained high levels of sodium that accounted for the dangerous levels of the chemical that killed him. Unfortunately, it was too already late for Garnett.

Through investigation, authorities found that the mother had been documenting the son’s multiple illnesses through social media. They believe Spears may suffer from Munchausen by proxy and caused her son’s illness, and ultimately death, for attention. It is likely she did not intend to cause the untimely death of her son but that was the regrettable result.

Family and friends gathered in support of Spears through her posts regarding her son’s illness and his stay at the hospital was no different. Spears denies giving her son the excess amount of sodium, but authorities are still investigating the matter and will likely charge her with the crime.

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.

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.