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Déjà Vu: Court of Appeals Profoundly Rejects DCS Procedure Again

By: Gregg R. Woodnick, Markus W. Risinger & Ian D. Haney

Originally published in Maricopa Attorney, July 2019, at 12.

For example, few things provide a person with more purpose and joy than raising children. The U.S. Supreme Court held, “even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.”[1] In other words, parents have a constitutional right to direct “the care, custody and management of their child.”[2] In Arizona, “only in the most extraordinary circumstances, when all other efforts to preserve the relationship have failed,” can the parent-child relationship be terminated.[3] Notwithstanding, courts, at the urging of the Department of Child Safety (“DCS”), have severed parental rights based on little more than agency opinion and unchallenged expert testimony.

Division 1 recently issued another decision that lambasts both the juvenile court and the Department of Child Safety (“DCS”) for their wholesale failure to protect parental rights.[4] The Donald W. decision is being viewed as a reinstitution of the accountability Alma S. v. DCS sought in 2017 against the Department, the Attorney General, and the Juvenile Court for their roles in an unfair deprivation of parental rights.[5]

Donald W. is the culmination of a four-year saga in which the State retained custody of a then newborn child (identified in the decision as “Melody”) while attempting to terminate her father’s parental rights without proving he was unable or unfit to parent.[6]  Per the history detailed from the Court of Appeals, Melody was born from a brief romance, and her mother lied to her father about paternity.[7] DCS removed her from Mother’s custody because the mother had previously failed to maintain a safe environment for other children.[8] Father contacted DCS to request paternity testing.[9] DCS facilitated the test and proceeded to a dependency hearing asserting that there was no parent willing or capable of providing care for the infant, Melody.[10]

At the dependency hearing, the Court ruled Melody was a ward of the State “based on inability to parent due to neglect and abandonment,” grounding its opinion in two DCS documents: the petition and a case worker’s report.[11] The DCS report only provided that the paternity test did not exclude Donald as Melody’s father and, “he wants his child to be placed in his care.”[12] Furthermore, the “petition did not state any facts” to supports its conclusions.[13] The court appeared to accept DCS’s abuse/neglect allegations as fact without any evidentiary support.[14]

Additionally, the Court of Appeals notes, DCS brought allegations of abuse/neglect against the father “without any investigation.”[15] This is especially troubling considering the Court’s prior cautionary declaration in Alma S. that “casual inquiry into the facts is not sufficient to meet even minimal professional standards,” let alone a sufficient basis to terminate a fundamental constitutional right.[16]

In Alma S., Division 1 noted DCS only had two pieces of evidence to support severance: the testimony of a DCS caseworker and a psychologist’s testimony.[17] However, the Court went on to hold, “[b]oth are too fundamentally flawed to support severance.”[18] Specifically, the DCS caseworker testified that she simply “mistrust[ed] Mother’s judgment and ability.”[19] However, as the Court of Appeals held, the rules of evidence demand that opinions can only serve as a basis for a court’s decision if they are based on facts.[20]

Division 1 also questioned, in Alma S., the propriety of the trial court allowing State’s proffered expert to testify. In fact, Division 1 held  the expert’s testimony was inherently flawed because it failed to consider “the available information nor to evaluate Mother’s parenting skills,” resulting in significant questions relating to Rules 702 and 703 of the Arizona Rules of Evidence.[21]  DCS failed to inform the psychologist of Mother’s 14 months of compliance with parenting services and that she never tested positive for drugs.[22] Notably, the Court of Appeals stated, “the foundation of [the psychologist’s] opinion is so lacking that we question (though we do not here decide) its admissibility.”[23]

Given prior warnings in Alma S., it is more alarming to read in Donald W.:

 DCS’s lack of diligence at the onset created the circumstances – the absence of a bond – that DCS relied on to maintain Melody in out-of-home placement. DCS then demanded Father remedy the condition by imposing unreasonable requirements on him, which undermined his efforts and needlessly prolonged the dependency.[24]

In short, DCS dragged its feet and essentially prevented a father from parenting, then used his absence against him as evidence of noncompliance with the agency’s unrealistic expectations.

The Arizona Supreme Court ultimately vacated (arguably, on procedural grounds) the Alma S. decision,[25] but the Division 1 opinion delivered by Judge Swann nonetheless details troubling concerns, like DCS arguing it is in the child’s “best interests” by pointing to utterly “irrelevant” bonding assessments.[26] DCS ignored that the proposed severance would force Alma S.’s two children to be “permanently” placed in different homes and that all three had a bond.[27] Judge Swann reminded DCS that they must prove “a substantial likelihood that the parent will not be capable of parenting effectively …, not that someone with better parenting skills may be able to care for the child.”[28]

Yet, DCS is not the only actor in a court system that regularly—even routinely—does not give parents a full and fair opportunity to participate or try to remedy the circumstances giving rise to DCS’s claim before usurping parental rights and unsettling families. Indeed, Alma S. and Donald W. remind us that DCS still “substantiates” cases based on subjective (and often unqualified) opinions lacking evidentiary support. The State still brings these factually devoid cases to court, which can result in judges terminating fundamental parenting rights on nothing more than “generic assertions.”[29]

Donald W. may signal Arizona’s high courts are going to scrutinize lower courts for merely rubberstamping DCS’s proposed orders and not giving appropriate deference to a parent’s fundamental right. Or perhaps, Alma S. and Donald W. are flares directed toward our legislature, illuminating the consequences of delegating too much responsibility to DCS. Regardless, these decisions expose an ugly truth: not just that DCS has the power to take your kids away without affording due process, but that even for prevailing parents like Donald W., the financial and emotional costs are truly extreme.

In early 2019, the Arizona Supreme Court decided Crosby-Garbotz (a Division 2 case), in which a father prevailed against DCS in juvenile court by proving he did not abuse his child.[30] However, the State refused to withdraw its criminal abuse charges against the father.[31]  Although the Supreme Court eventually prohibited the State from proceeding with the charges, for years the family suffered under the constant fear and threat of harsh consequences for a crime that did not occur.[32]

The defense community champions cases like Donald W. and Crosby-Garbotz., but these kinds of results are both uncommon and incomplete. A victory on appeal does not fix the fractured relationships and years of lost parenting time and bonding with a child. Unfortunately, there is no truly happy ending for these families.

[1] Santosky v. Kramer, 455 U.S. 745, 753-54 (1982).

[2] Id

[3] Mary Ellen C. v. Arizona Dep’t of Econ. Sec., 193 Ariz. 185, 192 (Ct. App. 1999).

[4] The decision Donald W. v. Department of Child Safety, 2019 WL 2181154 (Ct. App. 2019) proceeds Alma S. v. Department of Child Safety, 244 Ariz. 152 (Ct. App. 2017) (“Alma S. I”), which was vacated on other grounds by Alma S. v. Department of Child Safety, 245 Ariz. 146 (2018) (“Alma S. II”).

[5] Id.

[6] Donald W., at ¶ 1-3.

[7] Id.

[8] Id., at fn. 1.

[9] Id., at ¶ 4-5.

[10] Id.

[11] Id., 1 at ¶ 33 – 35.

[12] Id.

[13] Id., at ¶ 28.

[14] Id., at ¶ 30, (“Moreover, the record is devoid of any evidence supporting the unfitness allegations in the petition, a fact DCS acknowledged at oral argument before this court.”)

[15]  Id., supra note 12.

[16] Alma S. I, supra note 4 at 158.

[17] Id.

[18] Id.

[19] Id.

[20] FRE R. 703 and Cf. Adams v. Amore, 182 Ariz. 253, 254 (Ct. App. 1994) (holding that an expert’s opinion was inadmissible when a party “failed to lay the foundation that [the expert] based his opinions on facts or data ‘of a type reasonably relied upon by experts in [his] particular field).

[21] Id. at 159.

[22] Id., (“Conspicuously absent from the information the Department gave the psychologist is any reference to the 14 months of services Mother had successfully completed or was currently receiving” or that she “without exception—tested negative for drug use.”)

[23] Id.

[24] Donald W., supra note 4 at ¶ 51.

[25] Alma S. II, supra note 4.

[26] Alma S. I, supra note 4 at 162.

[27] Id.

[28] Id.

[29] Donald W., supra note 4 at ¶ 28.

[30] Crosby-Garbotz v. Fell in and for County of Pima, 246 Ariz. 54 (2019).

[31] Id., at ¶ 6.

[32] Mary Jo Pitzl, DCS wanted him to admit to child abuse to get his kids back. Instead, he fought the charges — and won, The Arizona Republic, Feb. 22, 2019, https://woodnicklaw.com/news/dcs-wanted-him-to-admit-to-child-abuse.



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