Parenting Stoned: Family and Juvenile Courts in Arizona

MedicalMJ

Arizona enacted the Medical Marijuana Act (Prop. 203) in 2010, which is regulated by the Arizona Department of Health Services.  Essentially, with a doctor’s assent, marijuana is considered medicinal and the possession of the same, for that purpose, is not illegal under state law.

Despite the passage of the Act years ago, there are still problems with the legalization of marijuana in the courts. In family court, the legalization of medical marijuana can impact parenting issues.

For example:

  1. You share legal decision-making (FKA: custody) and parenting time with your ex-husband.  You find out that he has obtained his medical marijuana card when he tells you that it is the only thing that helps him with his chronic back pain. How does the knowledge that your ex-husband may use marijuana during his parenting time affect your legal position?

 

  1. You get your medical marijuana card for a long-term diagnosis. Your ex-husband requests a court order preventing you from driving with your children in the car because he is concerned that your medicinal marijuana creates a risk of impairment.  What can you do?

 

  1. You were recently involved in a car accident with your child in the back seat. You informed the responding officer that you have a medical marijuana card and he believes that you were impaired while driving.  He calls the Department of Child Safety (DCS) to take temporary custody of your child, and the agency believes the child is not safe in your care.  How long can your child be kept away from you, and what can you do to prove that you parent safely?

 

Family Court and the Impact of Medical Marijuana

There are few studies detailing that social marijuana use is dangerous or harmful.  If it would bother you that a parent would have a beer or glass of wine with dinner while responsible for children, then smoking pot will probably be unacceptable to you as well.  Although some judges and commissioners have begun to accept medical marijuana use as part of some parents’ lives, others may have reservations and it could affect your parenting time.

Plus, although medical marijuana is legal at the state level in Arizona, federal law still prohibits its possession or use.  This can prevent some licensing agencies from allowing you to continue working in your field.  Change in employment status is one of the most common reasons that separated or divorced parents return to family court in Arizona in order to modify parenting time and child support orders.

The important thing to remember is that, notwithstanding the fact that Arizona legalized medical marijuana a half-decade ago, the legal use of marijuana is still a difficult issue in family court.  Although the social stigma of marijuana use has dramatically decreased in the past few years (and also in smaller courts like the Scottsdale City Court or Phoenix Municipal Court), the Family Court division of the Maricopa County Superior Court may still view your marijuana use disfavorably.

DCS, Dependencies, and Medical Marijuana

DCS is often even less amenable to medical marijuana use.  If the Department believes that your marijuana-assisted treatment for your medical condition places your children at risk, they may remove your children from your care and file a dependency action in the Juvenile Division of the Maricopa County Superior Court.  Most substance-related dependencies involve drug testing and counseling to ensure that you are willing and able to parent safely; however, your diagnosis and prescribed treatment of marijuana may conflict with the Department’s goal of forcing you to prove yourself substance-free.  Even if you and your doctor work out a different method to treat your condition, it could take weeks or months before your TASC screenings clear up.  In the interim, the Department will continue requesting restrictions and monitoring during your parenting time and play a significant role in your children’s lives.

Moreover, the TASC screening results are not as simple to interpret as the “positive-or-negative” dichotomy suggests.   Many Department workers are not well-versed in reading the TASC results and will expect the results to return to “negatives” within a week or two of your last use.  With more concentrated forms or higher dosages of marijuana, THC metabolites – the substances for which the urine, blood, and hair tests screen – can remain in your system for weeks or even months after your last use. In some cases, your screening results may vacillate between “negative” and “positive” over a course of weeks, even without new use, based on your body composition, diet, exercise, and various other factors.  Even comparing one test to another, even if the tests were only a day or two apart, can provide dramatically different and apparently contradictory results unless the screenings are mathematically “normalized” for your hydration level the day of each test.

DCS rarely consults with laboratory managers or physicians before seeking Juvenile Court involvement, but they will sometimes respond to the data if it is presented early – and convincingly.  For a parent, even a few days away from a child (or with visitation under Department supervision, only) can be excruciating.  The period of weeks or months while you, the Department, your doctor, and the Courts resolve a medical marijuana-related dependency matter can be one of the most difficult and frightening times in your life.

 

The Importance of Counseling in Domestic Disputes

All too often, tragedies occur in the context of divorce and custody disputes.  In Arizona we no longer use the term “custody” and instead use the phrase “legal decision making,” but for the purpose of this article we will refer to it colloquially as custody.  Unfortunately, many of those tragedies are perpetrated by the parties involved, but there may be ways to prevent the unspeakable from occurring.

On Christmas Day, a Casa Grande woman murdered her daughter, poisoned her family, and stabbed her ex-husband several times before attempting to kill herself.  Recent questioning revealed that the woman, Connie Villa, feared losing custody of her children to her ex-husband.  Few details are yet known about the couple’s 2012 divorce, made official a few months ago, and subsequent custody battle.

Eye Rub

Homicide is not commonplace in a family law dispute, but the threat of domestic violence, kidnapping, and other potential hazards and wrongdoing is great enough that courts often order counseling.  Furthermore, courts may order that the parties to a family law proceeding undergo a psychological evaluation, rehabilitation for substance abuse issues, and other forms of treatment to help create the safest environment possible.

Attorneys also have a pivotal role in resolving disputes in a way that promotes the long-term health of their clients and their families. Unfortunately, the professionals assigned to help guide a family through a case are limited by the good-faith participation of the parties.  For example, a husband who struggles with moderate depression may lie about his symptoms, fail to disclose his diagnosis, or refuse recommended treatment because he fears potential consequences with the court, his employer, or the rest of his family.  Conversely, the wife of a clinically depressed husband may exaggerate his behavior or fabricate an allegation of abuse in an attempt to compel a more favorable judicial result.

Meanwhile, the evaluators and caretakers are unable to make accurate recommendations to the court and cannot prescribe proper treatment of what ails the parties.  Ultimately, the failure of the parties to participate openly and honestly in the process can result in tragedies that might have been preventable.

It cannot be known whether the Christmas Day killing of Aniarael Macias, an innocent 13-year-old girl, could have been prevented, or even whether Villa suffered from an undisclosed or insufficiently treated illness, but the case provides a sad reminder of the high stakes that a family legal dispute can raise.

Welcome Back

If you are involved in a contested divorce, a custody dispute, a dependency hearing, or simply feel as though your family’s affairs are too strained to manage, the most important thing that you can do is to engage with the resources available to you.  Family court cases are immensely stressful to the parties, and even one or two counseling sessions can tremendously improve your quality of life during a difficult time.

Moreover, good-faith participation in the process, including complying with recommended evaluations and treatment, is critical.  Vexatious tactics and vengeance-oriented litigation might strain your family to the breaking point and trigger new disputes, violence, or worse.

The unseen forces that can damage a family – or an individual – beyond repair are particularly worrisome around the holidays, during school breaks and vacations, and just before or after moving to a new home or job.  Your attorney should be aware of these concerns and remind you that being overzealous in trying to protect yourself or your children might have the opposite effect of what you intended.

 

Regulatory Issues in Arizona Residential Treatment Centers

On February 19, The Arizona Republic/azcentral.com published its third entry in a multi-part investigative report into Arizona’s regulation of residential treatment centers for at-risk youth.  Reporters launched the investigation last year in order to determine whether Arizona is meeting its duties to regulate the safety of young people placed in residential treatment facilities.

The results of the report are shocking.  According to The Republic, the Arizona Department of Health Services (ADHS) and Administrative Office of the Courts (AOC) routinely collect data about the day-to-day operations of Arizona’s eleven Level 1 residential treatment facilities.  Unfortunately, the regulatory agencies almost never share the data that they collect with one another, let alone other agencies or the public, and records are destroyed after one year.

Clouds (Woodnick)The Republic gathered 2,100 incident reports; such reports are submitted almost daily and are required if a specific allegation of abuse or other health and safety issue comes to the facility administrator’s attention.  The reporters’ review of these documents revealed that the ADHS and AOC had not made any “substantial corrective actions” even after dozens of reports of sexual abuse and hundreds of reports of physical mistreatment were submitted for their review.

In fact, The Republic discovered only two cases in three years of records in which the ADHS sanctioned facilities, resulting in a grand total of $1,150 in fines.  Many of the most extreme allegations, like sexual misconduct by adult staff, were never fully investigated because the staffers were fired or left their jobs before the agency took action.

And those are just the reported incidents: one facility in Prescott Valley failed to report incidents of staff sexual abuse and sex with underage clients to the AOC in spite of regulatory requirements that they file such reports with both agencies within a day of their allegation.

The purpose of residential treatment centers is to provide a safe place for at-risk children to receive the help that they need to recover.  Courts often assign children to these facilities if they are convicted of crimes so that they can continue to receive an education while being treated and rehabilitated.

Hallway (Woodnick)Because juvenile offenses are often related to mental health disorders or abuse at home, at school, or elsewhere, many of these young people are at a high risk for being re-victimized.  Placing them in a facility which is questionably regulated could subject vulnerable children to further abuse which can only amplify the conditions and circumstances which already plagued them.

If your child is accused of a criminal defense, their rights must be protected.  Juvenile defense attorneys specialize in handling the unique issues of cases involving young people, but every case requires a new approach.  As more information emerges about the regulation (or lack thereof) of Arizona’s residential treatment centers, legal strategies to secure the best outcomes for juvenile offenders will change.  Although children who are accused of committing crimes often need specialized treatment, a court-assigned RTC may not be the best way to help them.

7-year-old Bronx Boy Interrogated for 10 Hours

Per ABC News, Wilson Reyes, a 7-year-old Bronx boy, made national headlines this morning.  Frances Menzes, the boy’s mother, alleges that the NYPD detained Wilson on Dec. 4 near his school, handcuffs and all, held him for four hours there, and then transported him to a police precinct for six more hours of questioning.Toddler (Woodnick)

His terrible offense? According to ‘published reports,’ Wilson struck a 9-year-old who also attends his school and stole $5 from the boy.  The New York Post reports that the city dropped the charges a few weeks later, prompting Menzes to threaten a substantial lawsuit (to the tune of $250 million) for the mistreatment of her son.

It is hard to imagine how the City of New York will justify having its officers detaining a 7-year-old for ten hours of interrogation, but any light that they might shed on the situation will have to wait – ABC News did not receive a comment.

Admittedly, the job of a police officer is a difficult one, and robbery is certainly not a victimless crime deserving no punishment.  This case, however, illustrates the unique challenges which have developed in recent years as legislatures, courts, and citizens struggle with deciding how to deal with juvenile offenders.

Handling a juvenile offense is a delicate task which requires specialized expertise for everyone involved.  Police officers, investigators, school administrators, and other personnel must balance their concerns for the safety of other children with the real possibility that reacting too harshly could cause irreparable damage to the juvenile suspect.  Juveniles are also much less likely to understand their rights, substituting fear and confusion for the jaded demeanor of some accused adults.  Furthermore, the rules regarding when a minor can be tried as an adult vary by jurisdiction, and a younger child may receive greater protections against unreasonable intrusions and punishments than an older one.

A criminal defense attorney in Phoenix with years of experience defending adults may lack knowledge about juvenile offenders and unique concerns about their rights to privacy and mitigated sentencing.  Conversely, a juvenile defense lawyer in Scottsdale may have become so specialized in defending older teenArizona (Woodnick)agers against drug charges that a robbery charge against a 7-year-old, such as that filed against Wilson Reyes, would present a plethora of unforeseen obstacles.

A criminal conviction for a juvenile could negatively affect their entire life – a felony record which is not sealed once adulthood is reached could prevent the accused from financing a car, from being hired by employers, and could even damage their ability to provide care for their own children.  Hopefully, your child is never interrogated by police for ten hours, but every case can have an extreme impact on yours and your child’s life.

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:

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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.

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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.

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: http://www.azcentral.com/news/articles/20121023cps-big-glitch-debate-over-obligations-continues.html?nclick_check=1

The Woodnick Firm Trains Teachers of the Phoenix Catholic Dioceses in Mandatory Reporting and the Law

Attorneys Gregg R. Woodnick and Brad Tenbrook were invited in January to present Understanding Mandatory Reporting & Child Protective Services: What all School Personnel should know about the Process, at Blessed Pope John XXIII School in Phoenix, Arizona.  

Being honored with the approval/blessing from the Phoenix Catholic Diocese, the seminar’s purpose was to help teachers understand their role in CPS matters and child abuse related investigations.

For more information on the Woodnick firm and future lectures relating to this topic, please visit the firm’s website below.

www.woodnicklaw.com

What Are Your Children Posting Online?

Some time ago, I represented a teenager in a highly publicized arson case.  My client, who was 15 at the time, was accused of burning down three (3) houses and a number of cars in an established North Phoenix neighborhood.  The original damage estimate for the property was in excess of $2 million dollars. 

The child’s parents, who were in the country on H1 Visas, hired me when the Maricopa County Attorney’s Office began procedures to transfer their son to the adult system so that he could be fully prosecuted for the series of arson fires.  As his defense lawyer, it was my job to keep my client in the Juvenile Court where we he could both get treatment and not be exposed to a prison sentence that exceeded his 18th birthday.    We successfully avoided the transfer and convinced the Court that keeping the child in the Juvenile Court was the best option.  (Notably, with arson crimes it is common to find that the accused suffered from some significant childhood trauma triggering serious mental health issues.  This was a major factor for the Court’s decision.)  In this case, the kid’s parents, who both had graduate degrees and appeared worldly, were completely blindsided by their son’s transgressions and clearly did not understand the extent of his mental health challenges.  Fortunately both a forensic psychologist and a psychiatrist agreed that there were mental health issues warranting keeping the kid in the juvenile system.

Years later, most people remember the case because of the extraordinary damage caused by the fires, but few know that the arson string was stopped as a result of a posting on MySpace.com and the actions of another parent who insisted on monitoring her child’s web activities.  As much as this is a story about oblivious and arguably negligent parents, it is also a story about a vigilant mother who monitored her son’s web activity and called the police when she realized what she was witnessing.  Yes, my client made a comment about the arsons on his friend’s MySpace page and the monitoring mother thought it was consistent with what she had been reading in the newspaper.  When the police knocked on his door to ask if he knew about the incidents, he admitted his involvement.  (Yes…had he simply invoked his right to remain silent, this string of arsons would most likely have gone without an arrest, but the consequences of Juvenile Miranda warnings will be the subject of a future entry.) 

So…if you are still reading this story you are probably wondering what happened to the kid.  He spent some time in jail, did some therapy, and went through probation and services through the Juvenile court.  But, despite our hard work to keep him out of custody, I was disappointed to learn that he has been arrested twice since the arsons.