By: Woodnick Law, PLLC

In February, the Department of Child Safety interviewed a child for a child neglect investigation without parental consent. This caused much debate, with the parents (and the Ombudsman) arguing that DCS lacked legal authority to interview their child without consent.  DCS countered by pointing out that the Department routinely interviews children in neglect cases by justification of an agency policy (and notwithstanding the legal prohibition against interviews in those types of investigations).

KJZZ interviewed Gregg Woodnick when the controversy arose, who pointed out that the Juvenile Court in Arizona often overlooks procedural mistakes, such as improperly nonconsensual interviews of children, if the information obtained relates directly to the child’s welfare.  DCS, meanwhile, requested an opinion from Mark Brnovich, the Arizona Attorney General, regarding the propriety of nonconsensual child interviews in neglect investigation.

Last month, Attorney General Mark Brnovich released an opinion siding with DCS, stating that DCS may legally interview the children specified in the exception provisions without parental notice, as long as the interview is relevant to the case.  Brnovich cited DCS’s duty to protect children as the underlying support for his position, apparently placing the agency at odds with the express language of the statutes.

Discussing the Department’s duty, Brnovich said, “DCS achieves this purpose through four functions: (1) investigating “reports of abuse and neglect”; (2) assessing, promoting, and supporting child safety through appropriate placements in response to “allegations of abuse or neglect”; (3) cooperating with law enforcement regarding criminal conduct allegations; and (4) coordinating services to “achieve and maintain permanency” for children and families.”

Brnovich’s opinion, and the Department’s ostensible intent to continue interviewing children in neglect investigations without parental consent in violation of Arizona law, will certainly result in legal battles as parents accused of neglect will move to preclude evidence that the Department collected by improperly interviewing their children.  The tension between due process for parents and the Department’s duty to protect children continuously reveals controversies in the law.

If a sufficient number of investigations become embattled over the consent to interview children in neglect cases, DCS could simply begin classifying every investigation as an “abuse or abandonment” investigation to sidestep the prohibition.  Alternatively, the Arizona Legislature may simply change the statute to allow nonconsensual interviews of children in all types of investigations.  Either way, Arizona taxpayers can look forward to the disagreement between the Attorney General and the Ombudsman resulting in expensive legal battles for the foreseeable future.