By: Woodnick Law, PLLC

In the news this week, the Department of Child Safety violated Arizona law by interviewing a child without parental consent, according to a report from the Arizona Ombudsman.

In October of 2014, a parent complained to Arizona Ombudsman Citizen’s Aide that their child had been interviewed by a DCS worker while at school without parental consent. According to the state law, “a DCS worker cannot interview a child without parental consent for cases of neglect that do not involve abuse or abandonment.”  The complaint triggered an investigation and the Ombudsman concluded that DCS routinely interviews children in neglect cases, by policy, notwithstanding the legal prohibition against those nonconsensual interviews. 

DCS’s policy is problematic for a few reasons, including the fact that DCS itself classifies whether an investigation is one involving abuse, abandonment, or neglect.  DCS essentially creates the rule for itself when classifying investigations and can determine whether consent is necessary before a child interview.  In the cases the Ombudsman reviewed, however, DCS classified investigations as neglect-based but still proceeded with child interviews without permission.  Those interviews are contrary to law.

Interestingly, Gregg Woodnick told KJZZ that, in some cases, statements from children are accepted in court regardless of what the law says.

“Even though the information may not have been obtained exactly as envisioned under a statute, the court is very likely to consider it,” Woodnick told KJZZ/NPR, “Because the consequence of excluding that information could be to put a child in harm’s way.”

Given the court’s willingness to consider children’s statements even if the parent did not consent, perhaps the Department’s interview policy is the best practice.  Unfortunately, Arizona law disagrees, potentially creating scenarios in which parents of neglected children refuse interviews and reduce the Department’s ability to collect necessary information.  If child interviews in neglect cases are the best practice, then it falls upon the Arizona Legislature to update the statutes.

Meanwhile, DCS has requested an opinion from the Attorney General and will ostensibly continue to interview children without consent, despite the Ombudsman’s report, until a court orders otherwise.  DCS remains an embattled agency in Arizona and will continue to struggle with the immense burden of attempting to protect Arizona’s children.

The Ombudsman’s Report can be found here.  KJZZ’s story, written by Alexandra Olgin and including commentary from Gregg Woodnick, can be found here.