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.

sadSarah 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.

ThScoldeden, 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

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.
Office
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.
Mouse Trap

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.

Hospital in the SnowThe 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.

Arm with IVSince 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.

PhoneIn 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.

CPS Under Scrutiny for Placement in Colorado City

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

woodnickArizonans for Children, Inc. reports that emergency shelters regularly harbor 1,300 children for three weeks or more while they await placement in homes.  The need for qualified foster parents exceeds availability, so CPS, although careful to select safe places to send children who need care, sometimes makes controversial decisions.

azcentral.com reports that Mohave County Supervisor Buster Johnson asked Gov. Jan Brewer and Attorney General Tom Horne to help return a child to Lake Havasu City, where his mother currently resides.  The child was separated from his two brothers, who are currently in Prescott, and was himself placed in the care of Dan Wayman, a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) in Colorado City.

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

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

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

woodnick

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

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

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