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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.
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 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.
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.
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.
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.
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.
I received a call the other day from a potential client and her partner. They had been fostering a child through a CPS placement for almost 19 months. The baby was just three weeks old when he was placed in their care. The first few weeks of his life were spent in a hospital. The birth mother had limited prenatal care and the baby was born as a S.E.N. (Substance Exposed Newborn).
Although foster training taught the moms that their obligation was to nurture the child until reunification with the parents occurred, as with many loving foster families, they fell in love with the baby after welcoming him into their Gilbert home. Notwithstanding the drug exposure, he was thriving in their care.
The foster moms went to every Dependency Hearing and even attended the Foster Care Review Boards. The biological mother appeared at the court hearings and proclaimed a desire to be reunited. Her numerous missed TASC drug tests told a different story. Her erratic behavior and failure to attend a court-ordered psychological evaluation coupled with an arrest for possession of drug paraphernalia certainly did not help her court appointed attorney present a defense or argument to expedite the reunification.
Meanwhile, the CPS case workers constantly changed. There was an investigative worker, an involved supervisor, and three others since the baby had been in the State’s care. Fortunately, no one ever mentioned removing the child from the foster parents. There was never a biological father identified (referred to as a “John Doe”) and mother’s family was uninterested and/or equally enmeshed in methamphetamine culture.
Ultimately, the biological mother’s rights were terminated (she was pregnant again at the Severance hearing). Now, six weeks after the severance hearing, the foster mom was meeting with an attorney for the first time to see what needed to happen. Foster Mom, who is a physician in Chandler, was eager to pay my office to tie this up and complete this adoption so that they could get back to normalcy and so that she and her partner would not have to deal further with CPS, court hearings, Foster Care Review Boards (FCRB), etc.
As her check book came out on my conference room table, I had the rare pleasure of telling the moms that this would be free for them. Pursuant to rules regarding ‘non-recurring adoption expenses’, the legal fees for the adoption can be paid by our Uncle Sam, irrespective of the financial situation of the parents.
Our law provides that, in the case of CPS placement adoptions, non-recurring adoption expenses are reimbursed (paid) by the government. What this means is that, once a Parent’s Authorization for DES to Reimburse Attorney Directly form is signed and other basic pleadings filed, the adoption can proceed through its conclusion without the adopting family incurring costs.
To be clear, this only applies to CPS placement adoptions in Arizona. Qualifying placement adoptions require that the child is legally free for adoption and cannot or should not be returned home, the child experiences of one numerous broadly defined special needs, and the adoptive parent cannot adopt without a subsidy. Most other situations, such as private severance actions, step-parent adoptions, and second-parent adoptions, still require direct payment to the attorney.
Still, the availability of government reimbursement for some adoptions contributes substantially to the placement of children with wonderful parents without the added burden of adoption expenses. The joy felt by a newly recognized adoptive family is something for which every Arizonan should feel pride.