By Gregg Woodnick and Isabel Ranney

A DCS Investigation

Crystal is the mother of three-month-old Michael and six-year-old Grace. A few months ago, she was the subject of a Department of Child Safety (DCS) investigation when Michael fractured his leg after a fall in the park. The attending physician at Phoenix Children’s Hospital believed the x-ray showed a previous, healing break and suspected Michael was being beaten. As a mandatory reporter, they relayed their suspicion of abuse to DCS pursuant to A.R.S. § 13-3620(A)(1). An investigation ensued, and now Crystal receives a letter in the mail informing her that the allegation has been substantiated.

After DCS completes its investigation, the parent receives a letter that informs that the allegation has either been proposed for substantiation or unsubstantiated. The standard of proof for the Department to substantiate is supposedly “probable cause.” If the Department believes the burden of proof is met, they will send a second letter containing a summary of DCS’ findings and indicates that DCS intends to enter these findings in the Central Registry. The letter also explains how the parent may appeal the substantiation before being placed on the Central Registry.

DCS Central Registry

The DCS Central Registry is a statutorily mandated list of “reports of child abuse and neglect that are substantiated and the outcome of the investigation.” A.R.S. § 8-804(A). A finding by a court that the child is dependent is considered a substantiation for the purpose of the Central Registry. Id.

DCS may only use the information for specific purposes outlined in the statute, which includes to determine the qualifications of persons working with children, such as an adoptive parent, foster parent, or otherwise licensed caregiver. A.R.S. 8-804(B)(1). Additionally, the information contained in the Central Registry may be considered a factor for persons “in positions that provide direct service to children or vulnerable adults.” A.R.S. 8-804(B)(4). In practice, those licensed in the state or who otherwise contract with the state or federal government are required to submit information to DCS and be subjected to a central registry background check.  

Once a person is placed on the Central Registry, their information and the DCS finding remains there for a maximum of twenty-five (25) years. A.R.S. 8-804(G). If the allegation is unsubstantiated or an individual is otherwise eligible to be removed from the Central Registry, DCS has a statutory duty to “annually purge reports and investigative outcomes.” A.R.S. § 8-804(H).

A DES Investigation

Adam has a tense relationship with his parent, Cameron. Cameron is eighty-one-years-old and has been in and out of hospitals due to a series of strokes and Adam is frustrated that Cameron will not consent to being placed in assisted living. Six months ago, they got into a verbal confrontation that escalated.  Adam pushed Cameron away as Cameron was angrily yelling about not wanting to move to the care facility.  Cameron scraped their elbow on the wall requiring stitches in their tender skin. When Cameron was seen at Tucson Medical Center, the physician reported their suspicion of vulnerable adult abuse to Adult Protective Services (APS), which is a part of the Department of Economic Security (DES). Adam has just received a letter informing him that the allegation of abuse has been substantiated and indicates that another letter will follow.

Under A.R.S. § 46-454(A), professionals who interact frequently with vulnerable adults are mandatory reporters. This category includes physicians, registered nurses, dentists, and any person who “has responsibility for the care of a vulnerable adult.” Id. Unlike mandated reporters of child abuse pursuant to A.R.S. § 13-3620, accountants, attorneys, and health care institution employees are also mandated reporters under § 46-454(B) and (C). For the purposes of this statute, a “vulnerable adult” is an adult who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment” or someone who has been deemed incapacitated as “defined in section 14-5101.” A.R.S. § 46-451(A)(10).

Arizona Adult Protective Services Registry

After a report is made, APS investigates the allegation. If the allegation is proposed for substantiation, the alleged perpetrator will receive a letter informing them of the decision to “pursue substantiation.” A.R.S. § 46-458. The standard of proof for substantiation is a “preponderance of the evidence,” which is when the evidence shows it is more likely than not that the allegation occurred—a higher burden than the probable cause standard for the Central Registry. The perpetrator will also be informed that they can request an administrative hearing before their name and the finding is placed on the Adult Protective Services Registry, much like with placement on the DCS Central Registry.

Unlike the Central Registry which is only accessible by DCS for limited statutory purposes, the Adult Protective Services Registry is publicly available. A.R.S. § 46-459. The information on the Registry includes the registered perpetrators name, date of birth, description of the disposition, the findings, and the date of placement on the registry. The identities of persons other than the perpetrator, such as the reporting source and the victim, are confidential and may only be disclosed for limited statutory purposes. A.R.S. § 46-4640.

Like the Central Registry, the information on the Adult Protective Services Registry remains there for twenty-five (25) years and the agency is required to annually purge reports. Placement of the Registry affects persons who are employed or seeking employment “in a position that provides direct services to children or vulnerable adults.” A.R.S. § 46-459(G). This includes employment in a community residential setting, at a daycare for persons with developmental disabilities, or home and community based services. However, it is possible that other types of jobs will consider placement on the Registry when considering whether to hire someone because the information, including a description of the crime, is public information.

The only statutory remedy for removal from the registry is to request an administrative hearing upon receipt of the letter indicating the allegation has been proposed for substantiation. Once the hearing has taken place, an individual may file a Motion for Review within thirty (30) days of receiving the final decision to request a re-hearing if necessary. A failure to appear or a failure to contest placement on the Registry will result in the individual being placed on the Registry.

Conclusion

In neither the DCS nor the APS hypotheticals above were the caregivers/parents arrested or charged with a crime. The police may not have even been involved. People usually believe this means the matter is over, but under Arizona law that may not be the situation. Both DCS and APS have their own statutory duties to independently investigate child and vulnerable adult abuse. Their investigations can lead to collateral, yet serious, consequences.

In the DCS scenario, while there is no publicly accessible Central Registry, the collateral consequences can be significant. It can impact careers, future work with DCS, the ability to adopt, and it can affect future custody matters. It is likely that placement on the Central Registry will be used in Family Court as gospel confirmation that the parent is a “child abuser” – a term not easily disputed.

For APS, the person placed on the Adult Protective Services registry is Googleable. While there are no charges or criminal consequences, being on a very public database as a person who abused an adult and that details a finding that may not be accurate impacts employability, not to mention the social consequences.

It is critical to appropriately and timely exercise the right to contest these findings. Arizona law provides for an administrative proceeding to assure some semblance of due process is available. But, to further confuse things, the administrative judge is not really determining if the state met the burden to put you on the registry – they are actually making a recommendation to the Director of the agency on whether they believe the burden was met. What actually occurs at these administrative hearings and the appellate remedies that may follow will be discussed in a companion article.     

 Gregg Woodnick has been practicing law in Arizona for over 20 years. He is a former adjunct law professor and has lectured for Yale University, Midwestern College of Osteopathic Medicine, Arizona State University and Northern Arizona University.

Isabel Ranney is a law student at the Sandra Day O’Connor College of Law at Arizona State University, Associate Editor for the Law Journal for Social Justice, and clerk at Woodnick Law.