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

Phoenix Foster Parents Arrested

On October 11, a husband and wife were arrested by Phoenix police after a yearlong investigation.  Police say that the man abused seven of his 15 foster children over a six-year period, and that this wife did nothing to stop it.

According to the Arizona Republic, there are over 14,000 children in Arizona’s foster care system.  As a state, Arizona ranks 38th in the nation in child poverty and 39th in overall child well-being (statistics courtesy of the Arizona’s Children Association). 

Although most foster parents are responsible, generous individuals who provide for the children in their care, there are rare cases in which foster parents abuse, neglect, or exploit the children placed in their homes.

The State of Arizona has two chief measures in place to ensure that foster parents are providing a safe environment for their foster children.  First, Child Protective Services (CPS) employs a number of social workers who are tasked with visiting foster homes and affirming that the children are receiving adequate care.  Unfortunately, CPS lacks the necessary funding and personnel to check every home, every month.

The second failsafe is licensing.  Per A.R.S. § 8-509, foster parents must undergo training, receive fingerprint clearance cards, and pass criminal background checks in order to receive foster parenting licenses.  In addition, the homes of prospective foster parents must be inspected, and all of these licensing requirements are repeated each year before renewal. 

As evidenced by the unfortunate case mentioned above, however, licensing and welfare checks are imperfect mechanisms to prevent abuse in foster homes.  An individual who completes the licensing process and whose home is suitable for foster children is not necessarily also a good parent.  Sometimes, foster parents, for reasons unknown (and perhaps unknowable), may pose a greater danger to children than the parents whose mistakes sent their children into foster care.

None of this is meant to suggest that foster homes are inherently dangerous.  The majority of foster parents do a fantastic job of caring for children.  Occasionally, foster parents are falsely accused of abuse or neglect in a vain attempt by biological parents to have their children returned to them.  In Arizona, foster parents have rights, including the right to contest the removal of a child in their care.

To read the original story, click the following link: http://www.azcentral.com/community/phoenix/articles/20121012phoenix-foster-parents-sex-abuse-abrk.html

 

 

Defending A Parent Accused of Munchausen By Proxy

Defending A Parent Accused of Munchausen by Proxy

Munchausen syndrome is a ‘sexy’ diagnosis and allegation.  While the term only entered legal and medical vocabulary in the mid-1970s, it has become rather in-vogue.  Hollywood made it popular in movies such as The Sixth Sense and with television shows such as ER and The X-files.  Even Eminem used his chops to sing about his childhood plagued with “…going through public housing systems, victim of Munchausen syndrome. My whole life I was made to believe I was sick when I wasn’t….”

What is Munchausen Syndrome?

Let me give credit to the Cleveland Clinic for this answer:

“Munchausen syndrome is a type of factitious disorder, or mental illness, in which a person repeatedly acts as if he or she has a physical or mental disorder when, in truth, he or she has caused the symptoms. People with factitious disorders act this way because of an inner need to be seen as ill or injured, not to achieve a concrete benefit, such as financial gain. They are even willing to undergo painful or risky tests and operations in order to get the sympathy and special attention given to people who are truly ill. Some will secretively injure themselves to cause signs like blood in the urine or cyanosis of a limb. Munchausen syndrome is a mental illness associated with severe emotional difficulties.”

Or…in layman’s terms…people perceive or fabricate their own illness, or others (usually their children) for reasons related to their mental health.

What does Munchausen by proxy (to another, typically their child) look like:

  • Child hospitalized or seen by medical providers of unusual and unexplained symptoms
  • Those symptoms seem to only be present when the caregiver is around
  • Symptoms do not comport with anticipated test results
  • Symptomology seems to worsen with parent and improve while the child is hospitalized or under supervised medical care
  • In dramatic instances there are chemicals in a patient’s system
  • The parent works in the healthcare field often with Extensive understanding of medical terminology. 
  • Parent is eager to have medical testing and procedures performed on the child
  • The parent goes doctor and hospital “shopping” for care and opinions

How do I defend the parent accused of abuse via Munchausen?

It is important to understand how these cases come about.  Usually a report of MBP comes through a medical provider who has surmised that the medical records do not match the level of treatment and testing that the child has overcome.  Perhaps the report comes from a pediatric specialist, such as a Gastroenterologist in the hospital, who is wondering why the parent has been referred for a procedure when nothing was found the last time a similar procedure occurred.  The parent presents as ‘too eager’ for the child to be put under general anesthesia and the Doctor surmises that the problem is the parent’s, not the patient’s.  The doctor will then be under an obligation to report the suspected abuse pursuant to Arizona’s Mandatory Reporting Statute.

CPS must then intervene and conduct their investigation.  If they are told by a physician (and probably the hospital social worker) that they suspect Munchausen’s, it is likely a TCN (Temporary Custody Notice) will be served and the child will be placed in CPS care while the matter proceeds to Court.

CPS will then consult with an expert on Munchausen’s. Often the Department will look out of state for an expert and frequently relies on providers from the University of California, Los Angles (UCLA). It is usually recommended that the only way to tell if a parent is fabricating is to separate the child from the parent and see if the condition improves.  Of course this means that the child will be removed from the home and placed in foster care.  Some psychologists believe that the child cannot be placed with a relative, despite Arizona’s kinship priority statute (A.R.S. 8-514.03) as somehow they too may be duped into believing that the ‘fabricated’ condition exists.

Defending parents in these cases is challenging as there is no unified mental health consensus as to the diagnosis/treatment of the disorder.  The State’s expert will no doubt discredit every medical decision made by the parent.  Engaging quality experts on Munchausen by proxy and possibly other medical professions is critical.

Jury Nullification in Arizona Marijuana Cases

Many of you may know William Penn as the man on the Quaker Oats packaging. Some of you may also know him as the founder of the State of Pennsylvania. What you may not know is that in 1670, William Penn was put on trial in London for soapboxing his Quaker principles. Why do we care about a case that happened 300 years ago in England? Well what if I told you that because of that case, a jury can now say, “forget the law” and make their own decisions on your innocence. Yes, even if two officers in Scottsdale, Arizona caught you with a joint, a jury of your peers could still find you ‘not guilty’ of drug possession.

How is that possible you ask? The answer is jury nullification. Jury nullification allows the jury to acquit the defendant even when the government has proven its case beyond a reasonable doubt.

It is not a surprise that prosecutors do not want you to know that you have this right. Some Arizona courts have even gone as far as to downplay the power of this right by saying, “while jury nullification is a fact of our jurisprudential process, anarchy would result from instructing the jury that it may ignore the requirements of the law.” The reality is that our legal system has jury nullification written in plain language for all to see, but the common juror does not even know about it, and the government isn’t losing sleep over that.

In a recent article in The New York Times, George Washington University law professor Paul Butler advocates the importance of jury nullification. “If you are ever on a jury in a marijuana case, I recommend that you vote ‘not guilty’—even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.”

It is no secret that throughout the court system, especially in Arizona, marijuana cases are clogging up the docket and creating unnecessary burdens on those involved in the case.

In Arizona, first time possession of marijuana cases are offered TASC/Diversion. This gives the possessor the opportunity to avoid a felony conviction if they participate in drug treatment. Obviously there is a debate over whether casual marijuana use warrants any therapeutic intervention. For those ineligible for TASC or who do not want to participate in drug testing, a jury trial is your option. The jury has a right to simply nullify the conviction.

There have also been many cases that have used the nullification power to set otherwise guilty defendant’s free. These verdicts are more commonly known as “conscience verdicts.” Hanson v. United States, 156 U.S. 51, 102 (1895). The argument that has been made in support of jury nullification being explained to the jury before they deliberate follows this logic; a jury of your peers are meant to take the law and apply it to the facts, but the jury alone makes the decision about what facts and what law matter in your case, therefore, the jury, and only the jury, should have the right to make the determination, regardless of the facts and the law, about your innocence. Makes sense right? Well the founders of our country thought so too, that’s why jury nullification is written into our law.

So the next time you are in the breakfast isle at your local market, make sure you take a moment to tip your hat to William Penn, not only for delicious cheese steaks, but also for highlighting the power of a jury to send the message to the state that some laws do not warrant convictions.

If you are interested in viewing the full New York Times article “Jurors Can Say No” please follow the link here:

http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=1&src=tp&smid=fb-share

Marie J. Cacciatore is a second year law student at Phoenix School of Law and clerk for Gregg R. Woodnick PLLC.

Should Arizona Require Everyone to be a Mandatory Reporter of Child Abuse?

A recent report on NPR (audio clip found here) discusses the push in Washington D.C., in the wake of the Penn State allegations, to make every adult a Mandatory Reporter.  As I’ve written previously, Arizona requires doctors, nurses, teachers, social workers, and parents (the full list is in A.R.S. 13-3620) who ‘reasonably believe’ a child is subject of abuse or neglect to make a report to CPS or law enforcement.  If you are not in one of the listed categories, you have no legal obligation to report suspected child abuse.

NPR’s report breaks down the pros and cons of requiring every adult in America to be a Mandatory Reporter.  You may be surprised that I think the cons outweighed the pros on this. 

First, on a local level, I doubt a change to the statute would fly in the State legislature.  Perhaps if the government tied federal funding to it that would be a different story—but that is not real reason to adopt a radical policy change or to prosecute those who do not do the moral thing.

Second, according to the National Children’s Alliance, some states that already have ‘all inclusive’ mandatory reporting have actually seen the number of reports drop since the legislation was adopted.  Further, it’s well known that Arizona CPS is already overwhelmed.  In our state, the legislature never favors CPS when budgets are tight, yet they still expect them to be flawless when protecting children.  

Third, it is just bad policy.   We want the people who are supposed to be protecting children to do their jobs.  If they don’t, they should get prosecuted, be sanctioned. and held accountable.  But having every shopper at Metro-Center who sees a parent spanking their kid think that they need to call CPS is silly and would overburden an already compromised agency.

Nevertheless, it is nice to see Mandatory Reporting enter the national dialogue.  But, broadening the scope of ‘who’ is required to be involved is not the answer.   

I teach mandatory reporting compliance to schools and medical organizations and hear their feedback and experiences dealing with CPS.  There are certainly problems in the system and perhaps larger moral problems when it comes to people not reporting suspected child abuse.  Yes, I’m referring to the Penn State tragedy and what appears to be a wholesale lack of common sense.

I propose that including more people in the mandatory reporting category is not going to fix situations like Penn State.  That is, U.S. Congress is not going to legislate morality with any success (remember Mark Foley?).

You can reach Brad directly at brad@woodnicklaw.com and can read more about child abuse and dealing with Child Protective Services at www.woodnicklaw.com.   Your comments are welcome – good, bad, or indifferent.  In the coming weeks, Brad and Gregg will be doing Mandatory Reporter training for a number of private schools, including institutions under the Diocese.  Brad and Gregg also provide training to medical professionals and will be featured at the annual Arizona State Association of Physician Assistants (ASAPA) Conference in March 2012.  

What If the Molestation Travesty at Penn State Happened at ASU?

What if the Molestation Travesty at Penn State Happened at ASU: Would Arizona’s Mandatory Reporting Statute Have Made a Difference?

Jerry Sandusky, the accused child rapist and ex-Penn State Assistant Coach, will never again be known as Joe Paterno’s defensive guru. That’s easy to understand. The more difficult aspect of the case surrounds who knew what and who had a responsibility to report what they knew.

The grand jury report states that Coach Mike McQueary, who was a graduate assistant in 2002 and who is currently the wide receiver coach and the recruiting coordinator at Penn State, testified that he witnessed Sandusky sodomizing a child in Penn State’s locker room in March 2002. The report goes on to state that McQueary, after seeing the horrendous act, contacted his father. After discussing what Mike saw, the McQuearys decided that they needed to tell McQueary’s boss, head coach Joe Paterno. Mike McQueary did so the following day.

Paterno, the report says, waited an entire day to relay McQueary’s story to Paterno’s “immediate supervisor,” Tim Curley, the Penn State Athletic Director, an ex-Penn State and Paterno-coached football player. Curley waited a week and a half before calling a meeting, which included McQueary, Vice President Gary Schultz, and himself. McQueary relayed the atrocious story to Curley and Schultz, and about two weeks later, Curley told McQueary that Penn State had taken Sandusky’s keys to the locker room and that Sandusky’s charity for underprivileged boys, The Second Mile, had been notified.

As part of his job at Penn State, Vice President Schultz was assigned to oversee the University Police. Yet Schultz testified that he only reported the incident to Penn State President Graham Spanier (his immediate superior) and The Second Mile, never to the University Police or any law enforcement or social services agency. From start to finish, McQueary’s report was “resolved” by Penn State in about a month.

The McQuearys took a basic up-the-chain-of-command approach. Paterno and his superiors did the same. There are allegations that what McQueary told Paterno was downplayed as the story rose through the ranks.

The remaining questions are: Were McQueary’s, Paterno’s, Curley’s, and Schultz’s actions enough? Did any of them need to follow up with their respective superior? What legal obligations did these men have to the victims?

The grand jury directly addresses the violation of Pennsylvania’s mandatory reporting statute, 23 Pa C.S. § 6311, in its report. The statute states that a person who suspects child abuse or neglect in the course of his or her employment (including, but not limited to, a public or private school) shall report to the “person in charge” of the institution. That person is then charged with making the report. The grand jury found that Schultz and Curley violated the statute and should be held to answer (they were also charged with making a materially false statement while under oath). The report does not mention Paterno and McQueary violating this statute.

If you read the entire grand jury report, you will see that Schultz tries to shirk his responsibility by saying he was never told what McQueary saw amounted to rape. Rather, Schultz testifies that what he was told wasn’t that serious and he never felt a crime occurred. McQueary’s testimony goes directly against that, saying that he explained what he saw in detail to Paterno, Curley, and Schultz. Either way, if Schultz reasonably believed that Sandusky was acting inappropriately with children, he should have reported same to the police or CPS.

The Pennsylvania statute is quite different from Arizona’s mandatory reporting statute. In Arizona, A.R.S. §13-3620 controls such a situation. Specifically, “[a]ny person who reasonably believes that a minor is or has been the victim of physical injury, abuse, [or] neglect…shall immediately report or cause reports to be made of this information to a peace officer or to child protective services [CPS] in the department of economic security, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only.” Subsection (A)(4) of the statute defines “person” to include “school personnel”. Therefore, in my opinion, all four of the men above would be in violation of Arizona law if this story went down at Arizona State University or the University of Arizona.

Further, the fact that McQueary told his supervisor, Paterno, and Paterno told his supervisor, Curley, and so on, does not fulfill their obligation of mandatory reporting under Arizona law. All of these men, whether they saw the rape like McQueary or whether they heard a watered-down version like Schultz, were obligated to make a report (or cause the report to be made) to a peace officer if they “reasonably believed” the rape occurred. That is, if McQueary told his superior and the superior never reported the suspected abuse, McQueary would be held responsible for not making the report (as would his superior, Paterno, in this case).

A distinction could be made if McQueary had been a volunteer. The first question, under Arizona law, would be to ask whether McQueary was responsible for the care of children. If a volunteer carries this responsibility, they have a duty to report suspected abuse to a police officer or CPS. In this case, it could be argued that McQueary was responsible for the care of children. That is, if there were 17 year old football players at Penn State or if facts showed McQueary ran a football camp for teenage boys, McQueary could be held to answer.

Brad TenBrook is an attorney at Gregg R. Woodnick PLLC. While Brad is a committed Ohio State fan (and proud graduate), his opinion here has nothing to do with football.

One Joint Burns Three Friends

Al, Butch, and Charlie have been buddies since their days at Arizona State University.  At one time they had many things in common.  Intramural sports, Sorority girls, video games, and, of course, partying.  Nowadays, with their careers in full-swing, the three old friends barely get to hangout.  They do get back together now and again.  And they do still have one thing in common: partying – specifically, smoking Marijuana. 

On a recent night out, the three friends decided to head to the Tempe Improv.  Butch picked up Al and Charlie and headed for Tempe.  Since Butch was driving, Al said he would bring a few joints and in return Charlie would buy the first round of drinks at the club.  While driving, the guys lit a joint and talked of their days on campus. 

Upon arrival at The Improv, the joint was still burning, so the three decided to finish it before exiting the car.  Unfortunately, a Tempe Police Officer saw the guys smoking and passing the joint in the parking lot.  Next thing the guys knew, they were all in handcuffs and Charlie had not even bought a drink.

Other than the small roach, the two other joints were in the center console, and not in anyone’s pocket.  Yet, all three friends were charged with possession of marijuana – a class 6 felony according to the Arizona Revised Statutes 13-3405.  This is where the story gets interesting and the friends’ stories diverge.

Al runs a small information technology business in Tempe and is self-employed.  He does not have to worry about the arrest and criminal charges effecting his employment.  However, Al is currently going through a nasty divorce.  Al’s wife has alleged Al smokes Marijuana and therefore, at least according to her divorce pleadings, should not have “unsupervised parenting time” until he can prove he is drug free.  Once his wife, or his wife’s attorney, catches wind of this arrest, Al’s road to easy parenting time and joint custody just got more challenging.

Butch is a long-haul truck driver.  He has been since he failed out of architecture school and needed to pay rent.  Butch’s employer doesn’t perform routine drug tests, but it does regularly perform background checks.  And even though this is Butch’s first possession of Marijuana and it may be dismissed after he completes the TASC program, Butch will have a hard time randomly drug testing at TASC when he is out of state for work. 

Butch will also have to deal with the DUI charge for Marijuana; also known as an “A3 DUI.”  This will have a great impact on his profession since he drives for a living.  Butch faces a license suspension and an ignition interlock device (A.R.S. 28-1381 and 28-3319), along with jail time and expensive fines.    

Finally, Charlie works at a small business as an accountant and has been studying to take his CPA exam.  Luckily for Charlie, his employer does not perform background or drug tests.  (Charlie has already been arrested for possession of Marijuana three times; once in college, once while skiing in Flagstaff and once at the ASU/UofA Football game in Tucson.)  Charlie has never been sentenced to any time in jail or prison because of these previous arrests, but his luck may have run out.  TASC is not an option, pleading to a misdemeanor is not an option, and the state of Arizona is most likely going to seek incarceration due to Charlie’s history. 

While the law is not supposed to discriminate, it is easy to see how a relatively small legal infraction will have drastically different outcomes for these three friends.

Help! I Got Arrested In Wellton, Arizona!

Where is Wellton? An old client called my paralegal the other day in hysterics. “I got arrested in Wellton for pot possession.”  You may be asking…“Where the hell is Wellton, Arizona?”

Having had many clients arrested in Wellton, I can tell you that it is more than just a great place to top off your gas tank outside of Yuma; it is also a popular place to get arrested for drug possession. The Interstate 8 Checkpoint is designed to catch major drug traffickers and for immigration purposes.  I-8 is a major artery for human and drug smuggling.  It has also recently become a hotspot where my clients (ranging from doctors to ASU students) are being arrested for possession of Marijuana (POM).  With unreliably well-trained sniffing dogs inspecting freight trucks, they also hone in on the casual pot smoker who may have left a joint in their pocket or car from their fun-filled weekend in San Diego.

My client is now facing charges in Yuma County.  Fortunately, we have a good working relationship with the Yuma County Prosecutor’s office.  She is also lucky because the quantity of marijuana found was only a few ounces.  We will work hard to help her avoid a felony conviction and repercussions to her professional license. Yes, I’ve been to Wellton. Nice people, nice town…but not a place where anyone should want to spend jail time.

Remember, if you are arrested in a small town like Wellton, just like in a major city like Phoenix or Tempe, you have an absolute right to an attorney and to remain silent.  Politely inform the officer that you would like to speak to your attorney before answering any questions… and call your lawyer.