March 19 2020
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Did Arizona Department of Child Safety try to bar parents from criticizing it?
DIANNA M. NÁÑEZ 2019.7.16
An Arizona Department of Child Safety report orders a parent to keep their court hearings and DCS meetings secret from news media, politicians and anyone who may bad-mouth the government.
In a document that otherwise seems standard for a report for a juvenile court judge, penned by a “DCS specialist” overseeing the case, this order stands out.
The DCS instructions for the parent are inserted in a section outlining services and support “to eliminate the need for continued out-of-home placement” for the child.
When a child becomes a ward of the state, the Department of Child Safety — with a judge’s approval — gets to recommend services that would aid in a family’s reunification. The parent doesn’t have to comply, but if the judge thinks the services are needed and a parent ignores the instructions, he or she could permanently lose custody of the child.
And at least one DCS report instructs clearly: The parent “must avoid inviting people to attend DCS meetings, or court hearings that may have a connection with the media, such as any journalist, newspaper/news reporters, potential political gain, or anyone who may write derogatory statements in social media or elsewhere regarding DCS or the Judicial system.”
The order is followed by allegations that the parent has repeatedly attempted “to invite these people to all” court hearings.
These hearings are public under state law.
The document criticizes the parent for continuing to need “supports” to help decrease “anxiety when faced with challenging questions or interactions with the Department.”
The Arizona Republic obtained a copy of documents that detail the state’s involvement in the case. According to the DCS document, the child was removed from home because the parent is struggling with mental health issues and unable to maintain a safe environment.
The document doesn’t say why DCS would insert language restricting a parent’s free speech rights into their case-plan services. Such services would typically include information about counseling, parenting education courses, housing or parenting skills.
The Republic has not independently verified the authenticity of the document, but it includes a court stamp with the names of state attorneys and a judge, as well as the signatures of Arizona DCS workers.
Asked by the Republic whether DCS places restrictions against parents inviting the media, politicians or anyone who may criticize the agency, a DCS spokeswoman said no, but cited the agency’s preference for privacy.
“We neither encourage or discourage parents regarding who they should or should not invite to court hearings,” said DCS spokeswoman Cynthia Weiss in a statement to The Republic. “Generally speaking our best outcomes occur when our involvement in a family’s life is kept private. Parents have a right to confidentiality in all family court proceedings.”
In response to follow-up questions about the language in documents obtained by The Republic, DCS spokesman Darren DaRonco said: “We can’t confirm the authenticity of a document that we haven’t seen.”
The Republic did not share the documents with DCS because the parent feared if their identity was revealed, they would be accused of violating confidentiality rules, which could harm their case.
The DCS ombudsman did not respond to The Republic’s emailed questions about whether language limiting who a parent can bring to court would overstep guidelines for case service plans, would violate a parent’s rights or what steps a parent could take to have such restrictions removed from a plan.
DCS officials often say confidentiality is in a child’s best interest and cite privacy restrictions as reasoning for not disclosing information about the government’s actions in a case.
While legislators and policymakers advocate for confidentiality to protect the identities of children and families, they’ve also pushed for greater transparency. In some cases, parents and officials push for accountability for the system that can take children from their families. In others, lawmakers and the public demand accountability for an agency that failed to remove children from homes where they later died.
Despite that push and pull, DCS orders that would ban a parent from informing people about their hearings or would stifle any criticism of DCS and the justice system are striking, even to those within the juvenile justice system.
“My gut reaction is that there’s a First Amendment problem there,” said Michael Nash, the once presiding judge of Los Angeles County’s juvenile courts, who now heads the region’s Office of Child Protection. “Generally speaking, our society theoretically values openness and I think that should apply in these hearings as well. Unfortunately, while confidentiality has some value, more often than not, it’s been used to protect the system rather than the parties.”
Parent and child-rights watchdog groups have increasingly raised questions about DCS’ attempts to control parents’ rights to invite anyone they want to their public hearings and speak publicly about their case. Those parents are entitled to open court hearings in cases that could determine how long their child must remain a ward of the state and, ultimately, whether the government may sever parental rights — arguably one of the most important rights any person holds.
But Director Greg McKay, who recently announced he would leave the post in September, has drawn fire as the head of an agency some see as more protective of its own actions than of parents’ and children’s rights.
DCS and the justice system largely wield the power in a child-welfare system meant to prevent neglect and abuse. But some parents say they feel they’re guilty until proven innocent and threatened that if they draw public attention to their case, it could cost them their kids.
“In too many states that’s exactly the problem, that everything is kept in the dark until a parent defies someone and risks losing their child permanently to make public information that was only written to protect bad actions by the state agency,” said Michael Ramey, executive director of the Parental Rights Foundation.
‘Getting to the truth’
Nationally, parental-rights and child-welfare advocates for greater transparency and accountability say there are still too many states with closed juvenile dependency courts, too many cases with gag orders and too little public scrutiny.
That may serve the state child-welfare agency or the government, but it harms parents who believe their or their children’s rights are being violated, Ramey said.
Sen. Heather Carter, R-Cave Creek, said she understands and is supportive of efforts to protect a family’s privacy, but lawmakers elected to represent the public should inquire about a case. It serves the agency and families, she said, when lawmakers can speak publicly about cases that present opportunities for legislative fixes or policies that would better serve child welfare.
“I think a fundamental role of government is protecting the most vulnerable so we’re constantly vigilant about that role responsibility,” she said.
Ramey pointed to a 2013 case that drew national attention when Connecticut parents fought the Massachusetts Department of Children and Families after their 15-year-old daughter, Justina Pelletier, was transferred to a Boston hospital, where her medical treatment was changed without their permission and DCF eventually gained custody of their child.
Against legal advice, the child’s father, Lou Pelletier, chose to violate a judge’s order and speak about the case. The father’s appeals were carried by news outlets across the nation. A judge later lifted the gag order and contempt of court orders against him.
The family has credited their comments to news media, in violation of the gag order, for drawing public scrutiny and spurring political pressure that changed the course of their case and eventually helped them regain custody of their daughter.
Ramey said that as a national organization, he receives numerous complaints from parents about child-welfare officials and courts trying to squelch their rights. Following the Pelletier case, more parents have balked at government restrictions and risked contempt charges to speak publicly about their case, he said.
But Ramey said he’s never seen anything as intrusive as an order that would mandate a parent keep secret their case from the news media, policymakers or anyone else who may make derogatory statements about DCS or the judicial system.
“It’s shocking and yet sadly, not surprising,” Ramey said. “Our confidentiality laws are in place to protect the children, but this kind of one-sided rule to keep parents from shining a light on the way they’re being treated does not serve children, it only serves to keep in darkness … that which needs to be fixed.”
He said such an order should spark concern in a state like Arizona, where the courts are open to the public.
“Courts that are charged with serving the best interest of the child should, of all people, be concerned with getting to the truth and not hiding it,” Ramey said. “Hiding the truth can only serve the agency that’s behaving in ways the legislators didn’t intend for it to behave, that’s behaving in ways the public would not accept, but it’s not going to protect the children.”
At DCS, a history of secrecy
Arizona’s child-welfare agency has historically been criticized for secrecy.
Long before McKay’s tenure, it took a string of child deaths and revelations of DCS’ (then known as Child Protective Services) missteps in the cases to trigger landmark legislative reforms in 2008 that permanently opened juvenile dependency hearings to public scrutiny and mandated checks on the system.
Gov. Doug Ducey appointed McKay director of DCS in 2015 after a tumultuous time, following Gov. Jan Brewer’s dismantling of the state’s Child Protective Services in 2014 amid promises to reform a broken system that had failed to protect children.
McKay had been leading the Office of Child Welfare Investigations when he exposed the agency hadn’t investigated more than 6,000 cases. Despite McKay’s whistle-blower reputation, critics balked at Ducey appointing a former police officer, who they said would prioritize enforcement, rather than a social worker or child-welfare expert, who would prioritize human services for reunifying families.
After McKay replaced Charles Flanagan, the fired former CPS head, McKay dismantled the Office of Special Investigations within the child-welfare agency, which provided some oversight of the agency through internal investigations of DCS staff.
At the time, McKay told the Phoenix New Times that OSI diverted resources needed to investigate cases of child abuse or neglect and that the closure had nothing to do with a misconduct investigation, which found no wrongdoing, into McKay’s former OCWI division. In response to a public-records request from the Republic, Ducey’s office claimed attorney-client privilege and refused to release investigation documents.
Under McKay, the number of children in foster care has declined. However, critics said their fears about a McKay administration were warranted when the new DCS head chose among his first major reformative acts to bring in-house an external public oversight system managed by Arizona State University’s School of Social Work. The move was questioned by lawmakers, child-welfare experts and DCS watchdog groups.
McKay told The Republic in a 2018 interview that he understood his critics’ concerns about his police background but that his work to reduce the number of children in foster care should speak to the priority he places on supporting families.
“People thought I was going to come in here and turn this organization into a police state — I was the person that kind of led to the dismantling of the old DCS as we knew it.” he said at the time. “I was coming from a law-enforcement and more of a prosecutorial background into a place where it is paramount that you have compassion, care and respect. Redemption is your goal.”
Chandler family’s case becomes flash-point for public scrutiny
DCS officials have increasingly refused to answer questions about numerous cases and actions, including whether or how the agency:
• properly vetted foster parents after a father was arrested for suspected abuse of his adopted foster child,
• is decreasing the number of children in foster care
• followed its own policies when a caseworker and police with guns drawn raided a Chandler couple’s home and removed their three children.
Media coverage of the Chandler case has stirred concern nationwide about public access to court hearings, as well as from parent and child-rights advocates who worry child-welfare agencies prefer to manage cases without being second-guessed and that it’s easier to remove a child from their parent when no one is watching.
In that case, the parents wanted their court proceedings to remain open, but a judge later barred a reporter and a lawmaker from a hearing, then told attendees at another hearing not to publish anything about the case. In response to legal motions by The Republic, the judge later ordered recordings of those hearings released, but ruled that the lawmaker and reporter had violated confidentiality in earlier hearings — a ruling Townsend disputed.
‘I have no confidence in DCS’: State legislator questions DCS, judicial system after privacy ruling
Parents who have concerns about how DCS is handling their case or treating their family have increasingly turned to social media to attract attention to their case. They hope their appeals for accountability will draw public support, political pressure and media coverage that may force the government to manage their case more carefully and help them get their kids back.
Some attorneys worry that the public complaints about DCS may spur retribution. Nicholas Boca, a family law attorney representing the Chandler mother, told The Republic in April that criminal charges and an edited video of the raid released by police were payback for the parents publicly criticizing police, DCS and the entire Arizona child-welfare system.
The Maricopa County Attorney’s Office told the Republic in May that despite the Chandler Police Department recommending charges against the parents, officials declined to prosecute the parents based on “no reasonable likelihood of conviction.”
The father told the Republic he’d hoped drawing attention to the case would protect his children, but he stopped granting interviews, saying he feared continuing to speak out could cost him his children.
Is legislative action needed?
Lawmakers say they regularly hear from constituents seeking help with their DCS case.
Sen. Carter said she receives desperate pleas from parents and grandparents. However, she said she’d never heard of any DCS restrictions that would ban a mother or father from informing the public, politicians, or anyone who may criticize the child-welfare system, about their DCS meetings or hearings.
“Let’s say we wanted to answer that question,” Carter said, referring to quizzing DCS about a ban in a parent’s case. “I can only have a one-way communication and say I’m concerned about this case.”
DCS officials say that they will only provide information to lawmakers about a case if they first sign a confidentiality agreement. Carter says that’s a Catch-22.
“Once I have a confidentiality agreement in place I can never report back to my constituent or fellow lawmakers what I found out,” she said.
Carter said DCS officials are typically responsive to her requests and to requests from the Legislature for policy information. But more needs to be done, she said.
“Is there some sort of statutory path that we can build to allow us to gather general information not case specific that would allow us to make policy decisions?” she said.
“It doesn’t matter whether you’re an elected official, a parent, a member of the community, we all have this fundamental moral calling to protect kids and so we want to make sure that we’re doing everything we can,” she said.
The good, the bad and the ugly
Nash, the former presiding judge of Los Angeles County’s juvenile courts who now heads the region’s Office of Child Protection, was among a group of stakeholders who pushed for greater transparency and tried to open California child-welfare hearings.
Doing so would have placed the state among 22 that mandate hearings be open to the public.
Although California state law says there’s a presumption that juvenile dependency hearings are closed, the court could allow the public into a hearing if there’s a legitimate public interest in attending. So, as presiding judge, Nash spearheaded an effort to articulate the process for someone to have access to the court under California law.
“What happens in a lot of places is the judge automatically says, ‘No, you can’t come in,’ when they really have to make that decision on a case-by-case basis,” he said.
But without regular oversight, historically veiled systems can slowly revert toward secrecy.
“It’s free speech,’ he said. “It’s your life, your case, your children, you should be able to talk about it.”
Nash said the entire child-welfare system is at stake if secrecy, and overly broad confidentiality restrictions, stymie transparency.
“The system is very imperfect, while the system is designed to do good things for any number of reasons it is never implemented as good as we like it,” Nash said. “It’s more important that the public understands the system, understands the good, the bad, the ugly, so the public and legislators can figure out what it’s going to take to fix it.”
About this report
A three-year grant from the Arizona Community Foundation makes reporting on child-welfare issues possible. See other “faces of child welfare” in our series at azcentral.com/child-welfare and support ongoing coverage.
Are you part of the child-welfare system? We want to understand your story. Share it with us at static.azcentral.com/child-safety-form/.
Reach the reporter at dianna.nanez@arizonarepublic.com
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