Originally published in the Maricopa County Bar Association Criminal Law Newsletter Spring 2023 edition on March 21, 2023.
By Sabra Barnett and Isabel Ranney
As criminal defense attorneys, we understand the importance of ensuring out clients do not make incriminating statements. When in doubt, we are quick to advise our clients to invoke their 5th Amendment rights. But, when there is a concurrent Department of Child Safety (DCS) investigation, invoking may have negative consequences in the dependency matter. It leads to a situation we call the perfect DCS Catch-22.
Imagine your client is being criminally investigated for allegedly molesting his daughter, four-year-old Dylan. You are aware that there is a concurrent DCS investigation, as you were hired when the police and DCS showed up at his door to remove Dylan from his custody.
You advise your client to seek separate counsel with expertise in dependency matters, but your client calls you to tell you they have been invited to a Team Decision-making Meeting (TDM) and asks whether you intend to be there. They have not been able to obtain additional counsel yet. Although participation in the DCS portion of this case is out of your element, you do want to protect your client’s liberty interest by ensuring that he does not incriminate himself. You also recognize that your client is himself unsure: he wants to go to the meeting and explain his side, but he also does not want to jeopardize the criminal investigation. He finds himself in a Catch-22.
Your client needs to understand that a TDM is a far cry from a “team” meeting and his apprehension is understandable. It is led by a TDM Facilitator—a DCS employee—who keeps a record of the meeting, which may be in any form the DCS employee deems appropriate. See DCS Program Policy, Ch. 2, § 8. In a typical situation, your client has been led to believe that if he just attends this meeting, his child will be returned that day. However, a TDM meeting is actually a time for DCS to question your client about the same incident that is being concurrently investigated by law enforcement. DCS even has a designated Office of Child Welfare Investigation (OCWI) that has a representative who may attend the TDM for the purpose of investigating the allegations. A.R S. § 8-471; DCS Program Policy, Ch. 2, § 8. However, the “record” of this meeting is not subject to review for accuracy, and any damaging (often incriminating) statements may be considered party-opponent admissions in a collateral criminal proceeding. Ariz. R. Evid. 801(d)(2).
Your client may invoke at the TDM to protect themselves against saying anything incriminating. While invoking the 5th will not have any legal consequences, it may set the stage for DCS viewing your client as non-cooperative and, especially where DCS has custody of the child, it your client will appear unwilling to aid in the investigation. On the other hand, if your client elects not to attend the TDM, DCS will note his non-attendance, and will likely not be made aware of any protective/mitigating factors that may put your client in a more positive light.
Based on the Catch-22 of choices, it is advisable for your client to attend the TDM if they want custody of their child. But, should you?
Without counsel present at this faux-cooperative meeting, your client may admit to facts that seem innocuous or that they believe could help have their child returned to them. They may even feel compelled to admit responsibility for something they did not do, believing that showing remorse will help them regain custody. However, ultimately these statements may be used against them in the criminal investigation and may even be admitted against them in criminal proceedings leaving the only option to challenge the accuracy and validity of the alleged statements.* Therefore, it is important that your client has representation at the TDM to help guide how questions are asked and answered and to keep their own records of the meeting.
Although it may feel contrary to how we are trained as defense attorneys, we have a responsibility to balance our client’s parental interest with the need to ensure that they do not make incriminating statements. This is why when advising a client to invoke with DCS, it may be best to recommend using a softer invocation (e.g., “I am happy to cooperate, but only with my counsel present.”). A soft, almost pseudo-invocation is the best method with which to appease the DCS investigators without facing a serious detriment to our client’s interest in self-incrimination in the criminal case.
To ensure that your clients interests in parenting and liberty are appropriately balanced, it may be more prudent to onboard an attorney who understands the DCS process. It is important to remember that a parent will most likely be appointed an attorney after DCS files their Dependency Petition. A.R.S. § 8-221(B). If so, your client not participating in the TDM to avoid making incriminating statements may be more advisable than if your client were to attend the TDM alone. Either way, onboarding someone with an intimate knowledge of the DCS/dependency process may be the best way to prevent the TDM from turning into a fishing expedition for incriminating statements.
*Additionally, while your client may invoke at the TDM, an invocation in a dependency proceeding may be used against him. The Arizona Court of Appeals has declared that it is especially appropriate to draw negative inferences from a parent’s refusal to provide a statement in a dependency or severance matter. See Melissa W. v. Department of Child Safety, 238 Ariz. 115 (Ariz. App. 2015). Unlike in criminal trials, the use of a parent’s silence against them at the TDM is fair game in the Juvenile Division and may ultimately result in the temporary loss of custody of their child—even if they did nothing wrong.
Sabra Barnett is a second-generation defense attorney and former Federal Public Defender. She is licensed to practice in Arizona and Alabama.
Isabel Ranney is a third-year 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 law clerk at Woodnick Law.