Phillip B. v. DCS

  • When an accused party challenges a substantiated abuse or neglect finding by DCS, what legal requirements must be met before the allegation is entered into the Central Registry?

Facts and Procedural History

Phillip B. worked in a group home with children, and had worked with children in various capacities for almost 30 years. In June 2018, a minor resident of the group home became agitated, and Phillip put his hand on the child’s shoulder to calm him down, ripping his T-shirt. There was a dispute about what happened next—the child said he couldn’t breathe, but Phillip and other adult witnesses testified that Phillip never put pressure on the child’s neck.

Someone reported the incident to DCS and a caseworker investigated the allegation. Following the investigation, the caseworker found probable cause that Phillip abused the child. The DCS Protective Services Review Team (PSRT) notified Phillip that it intended to enter the substantiated abuse allegation in the Central Registry. Although not a criminal charge, an entry on the Central Registry may disqualify someone from obtaining certain licenses or certifications, or prevent the accused from working with children.

Phillip first requested a hearing before an Administrative Law Judge (ALJ). The ALJ took testimony from witnesses and found that no probable cause existed to substantiate the allegation of abuse. The ALJ’s decision was then reviewed by the DCS Director, who issued a Decision in which he partially accepted, partially rejected, and modified the ALJ’s findings and conclusions. Based on the modified Decision, the DCS Director determined that the allegation was substantiated and should be entered on the Central Registry.

Phillip filed a judicial review action in superior court. The superior court found substantial evidence to support the Director’s Decision and affirmed. Phillip then appealed the superior court’s ruling.

Ruling

Before being entered on the Central Registry, an allegation of abuse or neglect must follow the substantiation process set forth in the Arizona Administrative Code:

  1. The DCS caseworker completes an investigation and finds probable cause for abuse or neglect.
  2. The PSRT notifies the accused that DCS intends to substantiate the finding and informs the accused of their right to a probable cause hearing.
  3. If the accused timely requests a hearing (within 20 days of the PSRT notification), it goes to a hearing before an ALJ.
  4. If the ALJ finds probable cause, the DCS Director reviews the ALJ’s determination and, if appropriate, accepts it.

In this case, the ALJ found no probable cause to substantiate the allegation. Therefore, there was nothing for the Director to accept. The Director may not modify the ALJ’s findings to substantiate an allegation, even if it reaches a different conclusion after reviewing the evidence.

Only if both conditions are met—the ALJ finds probable cause and the Director accepts the ALJ’s finding—is a finding substantiated and entered into the Central Registry.

Phillip B. v. Arizona Dep’t of Child Safety, 1 CA-CV 20-0569, 2022 WL 2128078 (App. June 14, 2022).

Timothy B. v. DCS

  • The court can terminate a parent-child relationship if a parent is sentenced to incarceration for so long that “the child will be deprived of a normal home for a period of years.” A.R.S. § 8-533(B)(4). What is a “normal home”?

Facts and Procedural History

Timothy B. was sentenced to 12.5 years in prison when his daughter was only two and a half. Timothy’s daughter will be 11 when he is released in 2024. While incarcerated, Timothy stayed in regular and frequent contact with his daughter. She lived with her mother for a period of time, and then with her mother’s friend after DCS filed a dependency action against her mother. She spoke with Timothy weekly and visited him monthly during this time.

DCS filed for termination based on the length of sentence ground, and the court terminated Timothy’s parental rights.

Ruling

What is a “normal home” when your parent is incarcerated?

The court of appeals interprets this phrase by looking at the legislative history of severance and adoption. Before 1970, Arizona didn’t have a separate statutory scheme for termination. Instead, the children were just adopted with or without the parent’s consent (under a best interests analysis, no grounds needed). In 1970, seeing many neglected children fill up “family homes” and institutions, the court ended the practice of maintaining the parent-child relationship by prescribing termination procedures. In other words, one of the purposes of the current statutory scheme is to avoid children languishing in foster homes; not necessarily terminating the rights of unfit parents.

Citing this history, the court interprets “normal home” to mean a stable and long-term family environment outside a foster care placement, where another parent or a permanent guardian resides and parents the child, and where the incarcerated parent affirmatively acts to maintain a relationship with the child that contributes to rather than detracts from the child’s stable, family environment.

A normal home does not necessarily require a parent’s physical presence in the home if the child is otherwise in a stable and long-term family environment outside foster care. “Because we can assume as a matter of common sense that the legislature would not intend to place a child in an ‘abnormal home,’ it follows that a ‘normal home’ can consist of a home in which the child has a permanent guardian, and the birth or adoptive parent is not physically present in the home but has some relationship with the child that serves the child’s best interests.”

The court also reviews the balancing test between parental rights and a child’s best interest. Once a parent is found to be unfit (under one or more termination grounds), their interest is diluted and given less weight in the trial court’s analysis.

Timothy B. v. Dep’t of Child Safety, CV-20-0318-PR, 2022 WL 664714 (Ariz. Mar. 7, 2022):

Tracy D. v. DCS

Tracy D. v. Dep’t of Child Safety, 1 CA-JV 20-0204, 2021 WL 6139285 (App. Dec. 30, 2021).

This is a juvenile court case but includes a good discussion of UCCJEA jurisdiction and due process requirements for a telephonic evidentiary hearing.

Facts and Procedural History

Mother travelled to Indiana near the end of her pregnancy and gave birth to her daughter, T.D., in early June 2019. Father remained in Arizona during the birth. Mother returned to Arizona with T.D. about seven weeks later. In August 2019, DCS filed a dependency action alleging neglect and substance abuse.

The trial court terminated the parent-child relationship between T.D. and her parents, and both parents appealed. Before the case was fully briefed, the court of appeals stayed the appeal and remanded to allow the trial court to conduct a UCCJEA conference. The trial court determined it had jurisdiction under the UCCJEA (albeit for the wrong reasons).

Ruling

There are four bases for a court to make an initial custody determination under the UCCJEA: (1) home state, (2) significant connection, (3) more appropriate forum, or (4) jurisdiction by default.

Home state

For a child less than six months old, the “[h]ome state” is “the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.”

T.D. was in Indiana for approximately seven weeks after her birth, and Indiana could have exercised jurisdiction at that time. But because T.D. was already living in Arizona when the dependency proceeding commenced, she was no longer living “from birth” in Indiana.

A state may also have jurisdiction if it was “the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”

At the time DCS commenced the dependency proceeding, Mother was no longer living in Indiana and Father still lived in Arizona. There was no parent or person acting as a parent that still lived in Indiana.

Additionally, Mother’s stay in Indiana was not a “temporary absence” from Arizona. “The temporary absence provision of § 25-1002(7)(b) comes into play only when a parent temporarily leaves the state where the child was born and then returns to that state.”

Significant connection

If there is no home state (or the home state declined to exercise jurisdiction), a court may exercise jurisdiction if this state is the more appropriate forum, “the child and at least one parent … have a significant connection with this state other than mere physical presence,” and “[s]ubstantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.”

In T.D.’s case, she did not have a signficiant connection to either Indiana or Arizona other than mere physical presence. She lived in Indiana for only seven weeks and Arizona for only three weeks when DCS commenced the dependency proceeding.

More appropriate forum

A court of this state may exercise jurisdiction if the child’s home state declines to exercise jurisdiction because this state is a more appropriate forum. This ground did not apply to T.D. because neither Arizona or Indiana has home state jurisdiction.

Jurisdiction by default

Finally, the court determined that Arizona did have jurisdiction under the UCCJEA because no other state has jurisdiction under any of the first three grounds. Indiana does not have jurisdiction, and Arizona law provides that “[t]he juvenile court [has] exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state.”

Telephonic hearing

The court also determined that the telephonic evidentiary hearing conducted at the beginning of the COVID-19 pandemic met the basic requirements of due process. Generally, due process requires an opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319 (1976).