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

Munchausen by Proxy?

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

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

Children at hospital

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.

Mother and ChildWhen 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.

When Arizona Foster Parents are Ready to Adopt – A Rare Opportunity for a Free Lawyer

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.

Sunglasses Baby

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.

Sports Kid

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.

 

Suspected Non-accidental Trauma: Femoral Shaft Fractures

Imagine the following:

You are the parent of two boys, ages 12 and 2.  Your children get along well – the 12-year-old recently helped you wean the little one off of bottles and takes pride in teaching his brother new things.  “Follow the Leader” has been one of the pair’s favorite games since the youngest learned to walk, and your five-acre property in Peoria provides ample space for the boys to play.  Bumps and bruises are common occurrences, and you keep the medicine cabinet well-stocked with bandages and antibiotic ointment.

Emergency Room (Woodnick)One day, during a particularly intrepid session, the 12-year-old guides the younger boy through the grass, over the lawn tractor, and into the part of the yard where your horse trailer is stored when not in use.  Because of your own recent injury – a car accident has left you unable to work for two years and the children are insured through KidsCare as a result of your low income – the yard is not as well-kept as it once was, leaving a lot of undergrowth around the trailer.  Because of the tall weeds, neither boy notices that a rattlesnake has taken up post in the weeds looking for a meal.  The younger boy notices the snake first and screams.  The snake, startled, coils up and begins its telltale warning rattle.

The 12-year-old immediately runs back to rescue his brother and scoops him up before the snake strikes.  Unfortunately, as the older boy is running away with the younger in his arms, he trips and drops his brother.  The younger boy lands on the tongue of the trailer, before falling to the ground, just as you arrive to see what the commotion is all about.

You check on your sons and discover that a large bruise has already formed on the leg of the 2-year-old, who is clearly in tremendous pain.  Like any parent would, you retrieve an ice pack from the freezer, instruct the older boy to keep it on his brother’s leg while in the car, and drive to the hospital as fast as the speed limit allows.

When you arrive, everything goes as expected: registration, triage, and a relatively short wait before your injured child sees a doctor and is taken for x-rays.  While you wait, a hospital social worker asks you and your older son some questions and fills out a form on a clipboard.  The radiologist eventually reads the x-rays and determines that your young son has sustained a femoral shaft fracture.

X-Ray (Woodnick)Little known to you, the doctor tipped off the social worker when you arrived because she found the injury suspicious.  Now that the femoral shaft fracture has been confirmed by scans, the doctor’s suspicion is even greater – so much so that she believes her duty to report abuse under A.R.S. § 13-3620 has been triggered.

As a result, the social worker calls Child Protective Services (“CPS”) and begins investigation of suspected non-accidental trauma (“SNAT”).  You are prevented from leaving the hospital and you and your sons are separated while CPS officials perform a preliminary investigation.  The younger boy is highly impressionable and, although advanced in speech for his age, will still respond with a “yes” to most questions, particularly when they are asked of him by adults.  His interviewer coaxes the boy to admit that he gets hurt often.  When the 12-year-old is asked about suspected abuse, he promptly denies any wrongdoing.

One CPS worker discovers several bruises and cuts on both boys – you know them to be the result of having two rambunctious boys who like to play outdoors – and records them in the report.  As a result of the femoral fracture, the boys’ testimony, the presence of bruising and abrasions on both children, and the fanciful nature of the rattlesnake story, CPS determines that the children may be at risk and removes them from your custody until a formal investigation can be performed.

Just like that, your son’s unfortunate accident turns into a formal accusation of child abuse because the doctor and CPS officials are trained to identify femoral shaft fractures as suspected non-accidental trauma (SNAT) – a strong indication of abuse even if the injury is explained by the parent.

What do you do?

First, know that CPS will attempt to place the children with a family member, usually grandparents, while the investigation proceeds.  Next, call an experienced Arizona child abuse and neglect defense attorney.

Girl in Cast (Woodnick)The presumption that a femoral shaft fracture is more frequently caused by abuse than by accident is not insurmountable, but it carries significant weight in CPS proceedings.  In order to prove that no wrongdoing has occurred, you may need to hire an expert to review the x-rays and compare them to the scene of the accident in order to refute the claim of abuse.  Because the eyes of judges and jurors tend to glaze over when they hear complex medical testimony, your attorney will need to understand not only the law, but also the medicine and how to synthesize the two in a way that non-experts can understand.

In 2011, the Phoenix Children’s Hospital published a study about CPS SNAT investigations and femoral fractures at their institution (you can access the study here: http://www.ncbi.nlm.nih.gov/pubmed/21598897).  Doctors within the Division of Pediatric Orthopedic Surgery there observed that, over a five-year period, 31% of children with femoral shaft fractures were referred to CPS due to suspicion of non-accidental trauma.  Among children younger than 1 year, 90% of those children were referred to CPS.  Children whose parents used Medicaid or who had no insurance were also statistically more likely to be suspected.

These observations – that younger children and children of low-income families are more likely to be referred to CPS due to suspected non-accidental trauma – are just a few of the dangerous assumptions that we have seen lead to CPS action against fit parents.  Femoral shaft fractures are not the only common SNAT injuries, either: spiral fractures, circular burn marks, oddly shaped bruises, and cervical spine injuries are just a few of numerous alarm-triggering issues that many physicians feel obligated to report.

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.

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

Penn State, Jerry Sandusky, and Mandatory Reporting

When the Jerry Sandusky/Penn State child abuse scandal broke, it was nothing short of a hot topic in my lectures about the mandatory reporting of child abuse.  And now that Sandusky has been sentenced I expect his case to come to the forefront again.

During his sentencing this week, Sandusky addressed the court – the first time he’s done so since he was arrested last November.  Sandusky painted himself as a victim, not a monster.  He blamed the media for being in the position he is in, claiming innocence regarding the “disgusting acts” for which he was being sentenced.  In other words, Sandusky is delusional.  It takes a real monster to think that scores of victims and numerous media professionals put their reputations on the line in order to take him down.

As I have mentioned before, Sandusky is not the only criminal in this scandal.  His superiors and the “higher-ups” at Penn State share some blame.  Not only did Penn State help create this monster, they did nothing to stop him.  Mandatory reporting laws, and here I’m referring mainly to Arizona’s MR law as I am most familiar with it, are in place to protect vulnerable children.

In Arizona, A.R.S. §13-3620 requires that school personnel, among others, report to police or to Child Protective Services any reasonable belief that a child has been the victim of physical injury, abuse, or neglect.  The Pennsylvania mandatory reporting statute, 23 Pa C.S. § 6311, requires a person who suspects child abuse in the course of his or her employment report that suspicion to the “person in charge” of the institution.  The Pennsylvania law appears narrower on its face than its Arizona counterpart, but the fact that employees, coaches, and administrators at Penn State may not have violated the mandatory reporting statute in their State does not absolve them of moral culpability for failing to protect children who they knew were in danger.

If Mike McQueary, the assistant coach who witnessed Sandusky raping a boy in Penn State’s football locker room in 2002, had made a report to Pennsylvania Social Services who knows how this would have turned out.  If someone within Penn State who McQueary approached after he witnessed the truly disgusting act had made a report, Sandusky may have been put away before he could victimize more children.  But these are all ‘ifs’.  The mandatory reporting law is in place to avoid these types of situations.

As I tell the doctors and teachers and other professionals who attend my lectures regarding mandatory reporting, it’s better to be safe than sorry.  It is questionable under Pennsylvania law whether McQueary had a duty to report what he saw to the authorities.  But that does not take away from his moral duty to report what he saw. And I think this applies to McQueary’s superiors as well.  Either way, all of these people cannot shake their head when they hear Sandusky the Monster say delusional things like he did during sentencing.  They helped create that monster, and a thirty-year prison sentence cannot correct all of the harm that they allowed to occur by failing to act.

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.