When news broke that a Maricopa woman had been accused of starving, pepper-spraying, and otherwise abusing seven adopted children, questions immediately turned to what the Department of Child Safety knew and when the agency knew it.
The case of Machelle Hobson and her foster-children-turned-adopted children drew an unusual amount of attention because some of the alleged abuse was related to the children’s performances for a popular YouTube channel.
But aside from confirming what police had already reported in the case — that child-welfare workers had removed the kids from the home — DCS said it could not comment due to confidentiality laws.
DCS frequently cites those laws and the financial penalty the state could suffer through loss of federal funds: when it requests courts to close proceedings, warns news media against showing the faces of foster children, and refuses to disclose seemingly routine details.
Six days after DCS’ “no comment,” DCS Director Greg McKay appeared to reverse course and issue a public statement that cast blame for the situation onto other agencies, as well as the general public.
In enumerating who had eyes on the children during the time of the alleged abuse, McKay revealed: “The adoptive home was certified and a judge finalized an adoption just weeks before this discovery.” He added that two police agencies were involved with the situation.
It’s one example of how the agency’s enforcement of confidentiality is peppered with exceptions — particularly when the public is paying attention. It also points to a lack of clarity on when children’s privacy rights prevail over the First Amendment right of parents to speak out, and the public’s right to know how their government is operating.
“It seems the department selectively pulls up the confidentiality flag,” said attorney DeeAn Gillespie, who encounters it in her work representing parents in DCS cases.
The secrecy, Gillespie said, fuels suspicion that DCS may be invoking it more to protect itself than the children in the case.
Complaints that DCS uses privacy when it suits them extend to no less than former Attorney General Tom Horne, whose office represented DCS.
“I didn’t realize this when I was AG, but now that I’m on the other side, they habitually try to use that (privacy) unethically,” said Horne, who has represented parents in DCS cases in his private legal practice.
Making exceptions to the rule
The confidentiality laws that cloak much of Arizona’s child-welfare system are intended to protect the privacy of the children and parents at the center of a case. DCS carefully monitors actions by families and the media that might identify children in state custody, by showing their faces, naming relatives or revealing details about a family’s prior involvement with the agency.
But there are numerous situations where such children are identified, including by the agency itself — from social media posts to GoFundMe pleas to police reports that detail the incident that brought the child into state custody.
When Taylor Swift brought her Reputation tour to Phoenix last year, photos of her performing a special concert preview for foster kids and their parents were all over Facebook and Instagram. Children in the widely shared images were identified as being in foster care
The Republic posted foster parents’ excited social media posts about the event and was not reprimanded for publishing them. The Republic asked Swift’s representatives and DCS if there was any push-back for the publication, but did not receive a response. The posts remain on various social media platforms.
Foster parents can post pictures of the children in their charge as long as they are not identified as foster children, said Kim Vehon, founder of Foster Arizona, a private group that supports children in foster care.
DCS runs a “Children’s Heart Gallery” featuring photos and descriptions of children up for adoption. Foster Arizona posts videos of children needing adoption. AASK, a nonprofit social-services agency, does the same thing, focusing on children with special needs.
DCS did not respond when asked about why it is allowed to publicize images of the children’s faces.
But both Foster Arizona and AASK said the judge presiding over a child’s case must issue an order allowing use of the child’s image and name. Spokesman Clint Williams said AASK was unaware of any such requests, which are submitted by DCS case managers, being denied.
There’s an exception in the law for children who have been abducted from state custody. That’s what allowed DCS last year to issue a news release with photos of a child whose parents apparently took her from her state placement and fled.
In this case, lawmakers determined concerns about the child’s safety trumped her privacy rights.
DCS referred many of The Republic’s questions to the Attorney General’s Office, which represents the agency in legal matters. The AG did not respond to repeated requests for comment.
Who does privacy protect?
There are good reasons for privacy.
For starters, it’s required by federal law. The Child Abuse Prevention and Treatment Act says states must protect the records and reports of child abuse and neglect out of concern for the privacy of the children and parents involved.
“It’s a pretty bright line that privacy prevails when you talk about a child,” said Professor Robert Fellmeth, director of the Children’s Advocacy Institute at the University of San Diego.
A news story that names a child who has been abused, or who has been in and out of the foster-care system, can be humiliating to the child and lead to bullying or worse, he said. With the internet, those stories can live forever.
However, other details about a case shouldn’t be shrouded in secrecy, Fellmeth said. For example, there’s no good reason why confidentiality should shield information about how a child-welfare agency operates.
“That’s a question that doesn’t in any way prejudice the case or the child,” he said. Asking why something occurred on an agency’s watch, or why kids were removed from their homes, is fair game, Fellmeth said.
In the eyes of defense attorneys, the confidentiality laws, at least the way they are currently interpreted, are a convenient excuse to limit public scrutiny of how the state’s child-welfare system works.
In Hobson’s case, for example, the public doesn’t know when the children were adopted or why the agency approved seven adoptions to a single parent. Nor does the public know the size of the financial subsidy she received for caring for the children, although agency attorneys said they have moved to cut off those payments. Because court files are sealed, the public doesn’t know if that funding is continuing or has been terminated. The Republic is seeking that information but DCS has yet to reply.
DCS and its attorneys argue the state stands to lose millions in federal child-welfare dollars if the confidentiality provisions are not followed.
Does that happen?
“Never, never, never, ever,” said Fellmeth. “They haven’t done it for any area that involves children.”
California lost some federal child-welfare support when it failed to get a computer-reporting system going, Fellmeth said. But he has never found a state that lost the dollars the feds send to support the foster-care system.
Open courts are a blurry window
The public’s biggest window into the child-welfare system is the juvenile courts, which are open. But the law requires a judge to bar disclosure of information that would personally identify the child or children involved in a DCS case.
This is referred to in the law as an admonition, and court rules spell out what information must be kept private: “name, address, date of birth, social security number, tribal enrollment number, telephone or telefacsimile number, driver license number, places of employment, school identification or military identification number or any other distinguishing characteristic that tends to identify a particular person.”
Delivered from the bench, the admonition was intended to be part of juvenile court hearings since lawmakers in 2003 opened courtrooms. That law reversed years of closed hearings that were accessible only to the parents, case managers and attorneys involved in a case.
But The Republic has been in courtrooms where the privacy admonition has never been issued. In other instances, the warning has been unevenly interpreted.
In late April, a Republic reporter sat in on a juvenile court hearing in a case involving an infant removed from her mother. No privacy admonition was read.
Judges also have the discretion to close a proceeding if they deem it’s in the child’s best interest.
In the case of a Chandler couple whose children were removed after a dramatic standoff with police who had a warrant to take the children, DCS moved quickly to close court proceedings. The judge declined to do so. But in one hearing, a Republic reporter was ordered to leave the court. In a subsequent hearing, another reporter was ordered to not publish anything about the proceeding.
Colleen McNally, who until fall 2017 was the presiding judge of the juvenile court in Maricopa County, said she’s not aware of any guidance on what constitutes “the best interest of the child.” But she has ordered parents to take down Facebook posts, or GoFundMe appeals if they identify a child. In one instance, a family was posting their child’s medical records.
“I just picture the children finding out,” McNally said, adding that information can follow the child well into adulthood.
Court closures are rare, she said.
“It’s more just a case of nobody’s there,” she said.
It’s unusual for media or observers to show up unless it’s a high-profile case.
While the courts are open, it’s hard to know when a given case is happening, unless a party to the case shares that information. Court dockets are not published online and not shared if a person calls the court clerk’s office to find out.
Informing the public
Informed public debate over whether a child-welfare agency is doing enough to protect children or why kids were taken from their homes can boost awareness and educate policy makers, said Martin Guggenheim, a professor at the New York University Law School and co-director of the school’s Family Defense Clinic.
“It’s one thing to protect the families from public attention; it’s another thing to protect the state from public attention,” said Guggenheim.
DCS says it can’t give details on why a given child was taken into state custody. But it does report aggregate data on the reasons for removal, categorizing them as either “abuse” or “neglect.”
But that information only tells so much.
More transparency would help lawmakers understand what policies might address the main causes for children being removed from their homes, whether it’s a lack of child care, food assistance, or drug counseling. Under the current application of confidentiality, the public doesn’t know what drives “neglect” removals.
“Neglect” is a very broad term that DCS does not define further in its reports. There’s no way for the public to know the dominant reasons for neglect, which accounts for 70 percent of the 9,300 removals last year.
Generation Justice, an advocacy group, has been pushing for release of more details on cases where substance abuse is involved in incidents that result in a child’s death or near death.
Its efforts are paying off: Legislation they championed was signed into law in April by Gov. Doug Ducey. It requires DCS to report if a child involved in a near-fatality or fatality report was exposed to alcohol or drugs and whether the report was called in by a mandatory reporter, such as a medical professional or a police officer.
Let the sun shine in?
More sunshine on how the agency and the courts operate would improve the system, said attorney Chris Phillis. She runs the Office of the Public Advocate in Maricopa County, which assigns public defenders to parents. In the past, she’s represented parents herself.
“I think parents would be treated better if more (people) were able to see what’s going on,” Phillis said. “It would help people understand where the system is broken, and how to fix it.”
Former AG Horne agrees.
The laws on privacy, he said, are “written over broadly and interpreted overly broadly” and need a legislative fix.
In his experience, Horne said, DCS doesn’t like to be challenged, and can retaliate — such as seeking court orders to not talk — if it perceives a parent or attorney has disclosed a child’s identity.
“There’s wrongdoing I’d like to talk about, but I can’t,” he said, citing fear of backlash from the agency and its attorneys.
The agency can be quick to ask a court to order parents to not talk about their case or otherwise publicize their situation. But defense attorneys question how much that protects a child.
“I think they’re trying to hold the parents down rather than protect the child,” said attorney Brad TenBrook. He represented a couple whose child was removed.
To help out, relatives set up a GoFundMe page to help cover legal expenses, but DCS got a judge to order it shut down. The page, TenBrook said, referred to the child only by first name and did not name the parents.
“What does the state get from withdrawing information from the GoFundMe page?” he asked. “Other than stopping the parent from paying for an attorney.”
Gillespie, another defense attorney, agreed a lot of the actions she’s seen are aimed at keeping parents from talking about their DCS experiences.
While DCS says parents have a right to tell their story, Gillespie is skeptical.
”I’d like to have that in writing,” she said. She’s had clients who were afraid to speak for fear of backlash.
DCS makes it clear that anything a parent says or writes can be used in court, which has a chilling effect.
About this report
A three-year grant from the Arizona Community Foundation supports in-depth research on child-welfare issues, such as the extent of privacy in state actions, at The Arizona Republic and azcentral.com.
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