By Gregg Woodnick and Isabel Ranney
Originally Published in the Maricopa Lawyer, online edition available 08/08/21.
Your client calls you saying the police and the Department of Child Safety (DCS) are at their door. You know your client is in the middle of a toxic divorce and brace for what is about to come next. “They say I touched Emma,” he says, referencing his four-year-old daughter. Of course, you tell your client not to answer any questions and to invoke his Fifth Amendment rights. Ten minutes later, the client calls back to tell you they are removing Emma from his custody because of his refusal to cooperate.
So begins a “Sophie’s Choice” scenario in which the parent must choose between defending their parental rights or avoiding prosecution. The best strategy for achieving one outcome may damage their ability to pursue the other.
Although you want to protect your client’s liberty interest by ensuring they say nothing self-incriminating, DCS will inevitably use their silence against them. In fact, the Arizona Court of Appeals has declared that it is especially appropriate to draw negative inferences from a parent’s refusal to testify in a dependency or severance matter. Unlike in criminal trials, the use of a parent’s silence against them is fair game in the Juvenile Division. Deciding not to not speak may mean temporarily losing custody of their child. Advising a client to invoke, but with softer words as they are dealing with a social worker, may be best (e.g., “I am happy to cooperate, but only with my counsel present”).
After taking custody, DCS will schedule a Team Decision Making meeting (TDM). According to DCS Program Policy, the meeting is presented as a “collaborative decision making process” to discuss the “safety, caregiver arrangements, and permanency of the children.” The purpose of the TDM is to attempt to reach a consensus with the family about how to protect the child before the Department decides whether to remove the child or file a dependency petition. Many TDMs begin with the specious assurance that “we are not here to discuss the allegations,” which is immediately followed by a discussion of the allegations that they are not supposed to be discussing.
In many cases, a TDM is anything but a “team” meeting. A TDM Facilitator—a DCS employee—leads and keeps a record of the meeting. This record is not subject to review for accuracy, and any damaging (often incriminating) statements may be considered party admissions in a collateral criminal proceeding. The purported goal of the TDM is to reach a consensus, but it often feels like the decision to take legal action was made before the parent even entered the building (see A.R.S. § 8-841). This means your client, thinking that they were participating in the TDM to have the children returned that day, was just questioned about the same incident that is being concurrently investigated and potentially prosecuted. What was proffered as a productive discussion about bringing Emma home turned into an interview that can and will be shared with the police. DCS even has a designated Office of Child Welfare Investigation (OCWI) that investigates the criminal allegations and aids in making the final decision at the TDM (A.R.S. § 8-471; DCS Program Policy).
Parents are almost always unrepresented and unprepared at the TDM. Parents may even be tacitly discouraged from obtaining counsel: parents may qualify for public defense services, but this can only take place after DCS files a dependency petition. Without counsel present at this faux-cooperative meeting, parents admit to facts and may, in a desperate effort to have their children returned, give statements that are used against them in criminal proceedings. They may even feel compelled to admit responsibility for something they did not do, believing that showing remorse will help them regain custody. Their statements, motivated by a desire to be reunified with their children, may be used as admissions to criminal conduct based on statutes the parent does not know exist.
DCS serves a critical function to protect children. Sometimes, they get it wrong. Understanding what occurs in these investigative processes is critical, but too often parents do not realize the risks until it is too late. These early quasi-investigative meetings have long-lasting consequences. If consulted early enough, counsel can play a critical role by reminding parents that their rights are best preserved by fully understanding the agendas of everyone at the discussion table.
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 currently working at Woodnick Law as a law clerk and is in her second year of law school at Sandra Day O’Connor College of Law at Arizona State University.