ACKNOWLEDGEMENTS

This study would not have been possible without the efforts of many people who freely gave of their time and shared their insights and their passion to protect the safety of vulnerable children. To these people and organizations we extend a very heartfelt “Thank you.” Without in anyway diminishing the assistance of others, we especially acknowledge the tremendous help provided by Jamie Capobres, MSW; Billy Wilda from Grandparents United for Children’s Rights; Kristine Reich, MSW, Arizona State University, School of Social Work, for providing us very dedicated social work interns, Asha Joseph, Amaya Evans, and Richard Woodard, all of whom helped conduct our interviews and made terrific suggestions throughout the project; Sally Jones and her staff at Human Resource Training, Inc.; Patti Calus, who helped review research; and the Arizona Prevention Resource Center, Arizona State University, for giving freely of their guiding expertise; to Chief Harold Hurtt and many at the Phoenix Police Department for their time and cooperation; and, to Dr. Katheryn Coffman and Detective Chris Metalski for their expertise and dedication over the course of this project.

Finally, we extend our sincere thanks to the Honorable Richard M. Romley, Maricopa County Attorney, for his passionate commitment to the cause of justice for child victims, and to his staff for their professionalism, advocacy, and willing cooperation and assistance throughout the study.

Together, we hope to see a time when the children of Arizona will have a future safe from criminal abuse and neglect.

TABLE OF CONTENTS

Dedication ……………………………………………………………. 2

Acknowledgements …………………………………………………....3

Table of Contents ………………………………………………………4

Introduction: Scope of Study, Methodology, and Definitions………….5

Defining Abuse and Neglect…………………………………….11

Chapter One: First Principles…………………………………………..20

Chapter Two: National Historical Overview……………………….…..28

Chapter Three: The Scope of the Problem…………………………......40

Chapter Four: Current Law……………………………………………..45

U. S. Supreme Court……………………………….…………….45

Arizona Courts…………………………………….……………..47

Statutes and Rules..........................................................................52

Chapter Five: Voices from the Field:

Comments and Field Recommendations………………………….…….70

Chapter Six: Issues and Commentary……………………….….……..129

Conclusion………………………………………………………….….160

Recommendations….…………………………………………….….....167

INTRODUCTION: SCOPE OF STUDY, METHODOLOGY, AND DEFINITONS

This report is the conclusion of a study, conducted from March 15, 2002 through January 31, 2003, of public policy issues in Arizona arising out of the criminal abuse and neglect of children, and related substance abuse issues.[1] It provides a policy overview of the legal and social systems that are established to protect children from criminal abuse and neglect and reports, from extensive field interviews, on views shared by many professionals in the field.

By “system” we mean essentially the social welfare system of child removal or family reunification, and the services attendant to these outcomes, operated mainly through the courts and the Arizona Department of Economic Security,[2] and the parallel law enforcement system of investigation and prosecution of abuse and neglect crimes committed against children. There are many stakeholders engaged in, or deeply impacted by, both these efforts. First and foremost there are the children and their parents. Doctors, nurses, health care providers, social workers, teachers, school counselors, grandparents and other relatives, law enforcement officers, foster parents, private and faith-based providers of services to children and families, legislators and other government officials, prosecutors, judges, and crime victim advocates all play roles in our society’s protection of children.

These two systems, the law enforcement system and the social welfare system, acting in concert, although at times discordantly, more often as “ships passing in the night,” are intended by current law to work together to protect child safety, punish those who compromise it, and at the same time, try to strengthen and reunify families in which children have been victimized.

To conduct this study we undertook the following:

1) Compiled and reviewed all Federal and Arizona laws and rules governing the protection of children, including relevant substance abuse laws;

2) Compiled and reviewed selected case files from criminal prosecutions involving children who have been also the subject of abuse reports to CPS;

3) Compiled and reviewed relevant literature regarding the correlation between substance abuse and child abuse;

4) Conducted 163 interviews of people in key sectors of the system, including judges, prosecutors, police, victim advocates, CPS workers, community service providers, foster parents, medical doctors, nurses, and social workers;

5) Compiled and reviewed relevant case law;

6) Researched public records relating to child abuse cases;

7) Studied the laws, rules, policies, and practices which govern and define how CPS responds to allegations of child abuse and neglect;

8) Studied the mandatory reporter laws which govern how covered professionals report allegations of child abuse and neglect;

9) Studied law enforcement and prosecution responses to allegations of child abuse and neglect; and

10) Compiled and reviewed relevant statistical information regarding the handling of allegations of child abuse and neglect.

Throughout the study we were in consultation with allied professionals working through Arizona State University’s Prevention Resource Center, as well as professionals in the field from around Arizona and the nation. In meetings with these professionals, with representatives of the Maricopa County Attorney’s Office, and with other organizational and community leaders in the field, we advanced and discussed various policy reform recommendations that make-up the focus of this report. The study does not intend to focus criticism on those working in the field; indeed, we praise the dedication of the men and women with whom we met, men and women who work tirelessly to protect children.

Interview Process

Interviews were conducted with 163 people representing key sectors of the system. This included judges, prosecutors, police, victim advocates, CPS workers, community service providers, foster parents, medical doctors, nurses and social workers. The purpose for these interviews was to allow the "voices from the field" to speak in their own words as much as possible.

In order to understand what opportunities may exist for performance improvements, the study set out to understand how the child welfare system functions and what changes could be made for improvement. Each person was asked a series of questions related to their understanding of the system based on their experience and individual expertise. The questions involved the following:

1) Background information

§ Child abuse risk factors

§ Current caseloads and trends

§ Personal interests and expertise

2) Current role and issues with the child welfare system

§ What is their primary objective?

§ What is their opinion of the central purpose of the “system”?

§ How do they work together and interact with CPS?

§ What issues or barriers currently exist?

3) Recommendations

§ What should be your primary objective?

§ What should be the primary goal of the child welfare system?

§ What changes or suggestions would you make to improve child safety and protection?

In person interviews were conducted individually and in groups. The interview process involved open-ended questions. Each participant was provided an opportunity to respond to each question. Since some of the interviews were performed in a group setting, comments were occasionally made that were shared unanimously. They are recorded that way.

All interview responses were captured, tabulated and presented in the tables which follow. While uniform questions were asked to each participant, some additional questions were asked to respondents based upon their profession to better understand their unique role and vantage point in the system. This explains why some questions only have responses by certain professions and not all. Like-responses have been grouped and summarized as best as possible, trying not to change or dilute the responses that were given. Those comments that were shared by many respondents are identified as one comment and indicated by an asterisk (*). What is interesting and noteworthy is how often they do appear.

As stated earlier, the purpose and scope of this study was not to pursue an exhaustive academic analysis of the child welfare system. There is already a wealth of such reports. Rather the approach was to search for and find a venue that allowed a diversity of voices to be heard. The 163 field interviews do not purport to represent a statistically valid sample of the professional fields they survey. Nonetheless, the surveys have reached deep into the community. It is the hope of this report that this venue of voices will prove to be a fruitful exercise. A summary of the 163 interviews conducted from March 1, 2002 to January 15, 2003 is provided.

Neither was the study designed or intended to be an examination of CPS or the County Attorney’s Office. The study identifies policy conflicts which arise from a tension and at times an inherent inconsistency in the goals of protecting child safety and reunifying families.

In Chapter One we offer a return to basic principles of American government as the starting point to analyze our policy regarding criminally abused and neglected children. First among them is the principle that each child is “endowed” with “unalienable rights.”

In Chapter Two we provide a historical overview and trace the evolving, and at times regressing, standards of treatment for abused and neglected children. We report on the recent legislative history in this long drama and observe the fundamental tension in the present policy goals of protecting the safety of the child and at the same time reunifying children into abusive families.

In Chapter Three we discuss the scope of the problem through the use of reported statistics. The study confirms the enormous, and under-reported, extent of the problem of child abuse and neglect. It raises questions about the rate of substantiated child abuse and neglect cases in Arizona.

Chapter Four offers an overview of current law, including state and federal statutory law, rules, and case law.

Chapter Five reports on the “voices from the field,” and summarizes extensively the views and recommendations of 163 professionals who were interviewed as part of the study.

Chapter Six raises issues, and provides commentary.

Throughout, the study offers a view of critical issues in hopes of informing the current debate over how to create a system which most people passionately hope will rise to meet the challenge and the promise of its name…child protective services.

Defining Abuse and Neglect

Perhaps the first sign that something is amiss in our public policy regarding child abuse and neglect is the difficulty we seem to have of defining just exactly what it is. It is possible to find definitions of child abuse and neglect in the literature dating back decades.[3]

Despite this there remains widespread confusion over whether child abuse is a crime (which it is), requiring a response by a police officer and a prosecutor (which in most cases does not happen), or a civil “family” matter (which it also is), requiring a social worker and prevention efforts (which are in too short supply and which may obscure the criminal nature of the conduct). In our public policy, the line of demarcation is not so clear, and the problem starts with definitions.[4]

M.D. Martin, in a 1977 analysis, Child Abuse and Neglect Research, wrote, “The issue of defining abuse and neglect is one of central importance and logically precedes a discussion of incidence, etiology, and treatment. The vagueness and ambiguities that surround the definition of this particular social problem touch every aspect of the field – reporting system, treatment program, research and policy planning.”[5]

Twenty-five years after Martin’s statement, with the federal government now spending over 9 billion dollars annually on the problem, there is still not a clear consensus on what child maltreatment is, why it occurs, nor what types of interventions are best to address it.[6]

“Certainly, whether a given incident under consideration represents physical abuse or just simply an extreme form of parent-to-child discipline (e.g., beating vs. spanking/slapping) is not easy to determine; thus there are blurred distinctions between abusive and sub-abusive or non-abusive behavior. … Different definitions have been used to examine the nature and extent of child physical abuse. The definition of child physical abuse in the Third National Incidence Study of Child Abuse and Neglect defined physical abuse as present when a child younger than 18 years of age has experienced an injury (harm standard) or risk of an injury (endangerment standard) as a result of having been hit with a hand or other object, or having been kicked, shaken, thrown, burned, stabbed, or choked by a parent or parent-surrogate.”[7]

Under federal law the term "child abuse and neglect" means, “at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.”[8] This definition is a part of CAPTA, the Child Abuse Prevention and Treatment Act.[9] CAPTA further defines “child abuse crime” to mean, “a crime committed under any law of a State that involves the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child by any person.”[10]

These definitions, used for field research by academics, or used by the federal government to govern grant-making or reporting decisions, are necessarily general. They are not “operational” definitions in the sense that they are not used to prohibit specific conduct. For operational definitions it is necessary to look to state law.

In the Legislature, differences of opinion and values are debated and either consensus is reached or majorities rule. This political process leads to state laws that identify the specific elements of unlawful conduct, and prescribe the consequences for engaging in it. Unlawful conduct may be a criminal act (e.g., murder), it may be a civil wrong (e.g., accidentally killing another), or it may be both (e.g., murder is also the tort of wrongful death.)

There is a clear national consensus that child abuse and neglect, at some level, is criminal conduct. Every state has enacted statutes that criminalize child abuse and neglect. At the same time, “child abuse and neglect” definitions also give rise to civil sanctions that can include termination of parental rights. The triggers for these actions are dependent on definition by the Legislature.

The first challenge is to define “child abuse and neglect” with sufficient precision that people of common understanding can know what conduct is prohibited. A statute cannot be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”[11] Once we have defined criminal child abuse and neglect, by legislation, we must reach a common understanding of what the consequences should be. Prison or jail, probation, “treatment,” fines, restitution, and loss of parental rights are all options.

The next challenge is to reach consensus on whether all child abuse and neglect, as the legislature defines it, should be criminal or whether there should be non-criminal child abuse and neglect as well. If so, how should it be defined? And what consequences should be imposed in the non-criminal cases? Permanent loss of parental rights, temporary loss, counseling and treatment to preserve or reunify the family are all options we have tried, all too often when children also have been victims of criminal abuse or neglect, because we did not focus closely enough on the differences.

These questions remain largely unresolved.

As a consequence, in our public discourse about child abuse and neglect, when we speak of “abuse,” some hear “spanking” and reflexively defend the “rights of parents.” Others hear “beating” and “torture” and reflexively condemn parents and push efforts to expand the state’s power over the family. When “neglect” is discussed, some hear “poverty” or “poor parenting skills” and push social welfare solutions; others hear “abandonment” and “crime,” and argue for a criminal sanction.

The intersection of these criminal and civil statutes is broad. Most of what justifies the termination of parental rights or a dependency is also serious criminal conduct. Yet we do not generally respond to child abuse or neglect in the same way we respond to criminal allegations. Evidence that a parent has “neglected or wilfully abused a child” is sufficient to justify termination of parental rights.[12] A child “may be taken into temporary custody… if [it] is clearly necessary to protect the child because the child is either suffering or will imminently suffer abuse or neglect.” A.R.S. § 8-821 (B). Presumably then, because the standard is “may” and therefore discretionary, a child need not be taken into temporary custody under these circumstances, although in most cases the underlying conduct is a crime. Should the parent then be taken into “temporary custody” by way of an arrest?

What divides the line between criminal and civil cases? What is a crime and what is a problem that calls for a social worker? Would the invocation of the criminal law bring a seriousness to the matter that might help in the long run? Or would it drive the problem underground? When are these two systems, the civil and the criminal supposed to work together? And why is the criminal system used less frequently?

Ultimately the operational definition of “child abuse and neglect” depends on each state’s statutes. Under Arizona law, criminal child abuse occurs when a person having care or custody of a child “causes the child to suffer physical injury,” or “permits a child to be … endangered,” among other things.[13]

While we have grappled with these definitional issues for years, we have yet to summon the understanding, discipline, or collective will to resolve them. This failure is of more than academic interest. Children are the victims of our inability to resolve these debates with more clarity. There are times when we seek to “reunify” children with criminal abusers because we have not thought critically or clearly enough about the character of the abuse we confront. At times it seems as though we are paralyzed by uncertainty; that we lack the conviction to keep children safe because we are not sure of ourselves or the clarity of the moral principles that should govern our actions.

Nowhere is the moral confusion more clear than in the definition of “[p]rotective services” found in A.R.S. § 8-801. One might think the definition of the phrase “protective services,” when used in connection with the criminal abuse and neglect of children, might have something to do with protecting children from abuse and neglect. One would be wrong. Here is the definition in full flower of its bureaucratic splendor:

"Protective services" means an identifiable and specialized child welfare program that seeks to prevent dependency, abuse and exploitation of children by reaching out with social services to stabilize family life and that seeks to preserve the family unit by focusing on families in which unresolved problems have produced visible signs of dependency or abuse and the home situation presents actual and potential hazards to the physical or emotional well-being of children. The program shall seek to strengthen parental capacity and ability to provide child care.

Protective services is a program which “seeks to prevent…abuse...by reaching out with social services to stabilize family life,” and at the same time “seeks to preserve the family unit… .” Fundamentally what this means is that perpetrators of criminal conduct are to receive “stabilizing” services and “victims” are to be sent back to their victimizers.

The challenge for our public policy begins with the need to reach consensus on the moral values we bring to the debate. For this, a return to first principles is necessary.

CHAPTER ONE: FIRST PRINCIPLES

At times it seems to be a system at war with itself, the easy target of critics and the faithless companion of friends. But the war over child protective services policy is a war of our own making. In our law we tell our beleaguered child protective services case workers that they must both protect the safety of the children in their care, while at the same time undertaking “reasonable efforts” to reunify criminally victimized children with their victimizers.

Indeed, the latest child welfare craze to sweep across the nation, “concurrent planning,” by its very name bespeaks the kind of mild schizophrenia which characterizes our public policy regarding criminally abused and neglected children. “Concurrent planning” is the label given to child protective services efforts that simultaneously plan a child’s permanent future both with and without his or her parents, where “both reunification and alternative permanency are pursued at the same time.”[14] It would seem after more than a century of grappling with these difficult questions we would have found some better answers.[15] As can be seen in the complex and contradictory approaches between the civil law and the criminal law, answers continue to elude us. Perhaps as with all things that are terribly hard, it has been easier to just look away.

When public policy seems to be veering off-course, or hopelessly complicated and enmeshed in contradiction, a resort to basic principles is always necessary, and that is how we begin this report.

America’s first principles are expressed eloquently in the Declaration of Independence. None holds a place more central in our hearts or in our history than this: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men… .”[16]

This principle binds each American to a culture of freedom that places the rights of the individual above the power of government. But it also binds us to a culture that protects individual rights against private encroachment, not just public. And so we say that government’s primary duty is to protect the natural rights of each person, from public or private infringement.

The “self-evident truth,” that each child comes into the world equally endowed at birth with “unalienable Rights” to life, liberty, and the pursuit of happiness, remains the core value of the American culture. It should be the foundation of all our public policy, including our policy regarding the criminal abuse and neglect of children.

Sadly for our society, and tragically for it’s littlest ones, we have not been faithful stewards of this first principle in our protection of the “self-evident” rights of children. Far too many are not free from criminal abuse and neglect in their lives, liberties, and pursuit of happiness. Far too many are victims of both abusers and the system that was designed to protect them. Every child born into this country ought to be heir to a legacy of freedom; to every child should be given the unalienable rights which our government promises to secure as the “blessings of liberty to ourselves and our posterity.”[17] Indeed, we hold that it is the very purpose of government to secure these rights, and there is no exclusion for children.

Yet, somehow, we have lost our way. Somehow, the promise to each child of an endowment of unalienable rights has been forgotten, lost to the more powerful secular notion that children are the property of their parents[18] and therefore not quite equal and not yet endowed.

To be sure, the State should not have the authority unreasonably to dictate to otherwise law-abiding parents how they will raise their children. Parents need to nurture their children, and children must learn respect and the virtue of self-governance. But this means simply that parents owe a special duty to their children. However, today, in Arizona and across the nation, children remain trapped by government laws and policies in homes where they suffer the pain of criminal abuse and neglect. And we put them again and again in harm’s way because of a policy that, in practice, values family preservation[19] before child safety. In doing so, we betray our first principles and the legacy of freedom which was purchased for us at great price.

In our public discourse, we honor “family values,” and so we should. Surely the family is the cornerstone of our civilization.

Within the family we should transmit our values as a nation. We should transmit the values of love and protection, of responsibility and industry and citizenship. The family must be honored and not undermined in our law.

But the family must never be a shield for criminality.

We honor the family in so far as it nurtures the growth of healthy and productive and free citizens; it is a means to actualize our freedom, not an end in itself. If a family becomes destructive of unalienable rights, it is the duty of a just society to restrain it, in order to protect more fundamental, unalienable individual rights. Indeed, it is precisely because of the importance of the family, that any assault within the family, which always threatens its strength and structure and cohesion, must be considered not only serious in and of itself, but also a grave threat to the strength of the nation, and, hence, a more serious crime.. Yet it is not so; not in our culture and not in our law.

Today, a criminal assault on a child, even a baby, committed within the family, can, depending on how it is charged, be no more serious an offense than the same assault by a stranger on a stranger. They both can be misdemeanors.[20] An assault on a corrections officer or police officer is a more serious offense than the same assault committed against an infant or newborn baby.[21] It is a class 6 felony in our state to subject an animal to cruel mistreatment;[22] it is not even a crime to addict a child in utero to dangerous or narcotic drugs so that the child’s first days after birth are filled with tortuous pain.[23]

If a father assaults his daughter she may be forced to go to counseling with him, while she is forced to remain in his home.[24] Surely it would be unthinkable for anyone to force the victim of a mugging by a stranger to go to counseling with her mugger.

It would seem that a well-ordered society, which valued the family, would treat crimes within the family as more serious offenses than crimes committed by strangers upon strangers. More is at stake when the crime occurs within the family, more harm to the victim and more consequent harm to society as a whole. Research now shows the profoundly harmful consequences that result from not intervening sooner in the life of a criminally abused or neglected child.[25]

This study looks at our system of child protection and measures it against the philosophy of our first principles. It looks at the history of child abuse laws in America and Arizona. It identifies weaknesses in those laws and argues that we must make them stronger. It proposes that we unequivocally place the right of a child to be safe from criminal abuse and neglect at the center of every law, rule, policy, practice, procedure and process that we have regarding child and family welfare. It reports on interviews with persons on the frontlines of the struggle to keep our children safe. It summarizes many of their insights and reports their recommendations. It points out how the system is not only under-funded, but perhaps more importantly, under-conceived. It suggests that it is time finally to lift the veil of secrecy which shrouds our system of child protection.

How is it that we could be at a point in our history when it can be a more serious crime to mistreat an animal[26] than to cause a baby an agonizing birth and death? The answers to this question are woven through the story of law and policy, of history and practice that follows here. And it takes us, ironically, to an intersection of animal and child welfare, in America, in the 1800’s.

CHAPTER TWO: NATIONAL HISTORICAL OVERVIEW

In the 1600’s, America was a harsh land for children. According to a special report by the Sacramento Bee, children were “relevant only as assets to their parents,” and “poor, orphaned, or illegitimate children frequently were indentured to learn trades.”[27] By the 1700’s, abandoned or orphaned children were sent to live in “almshouses,” publicly funded shelters. Either relatives or strangers could claim the children for household workers and receive public funds as “foster parents,” but there was little or no check on the well-being of the children.[28] This system lasted well into the 19^th century.

Then came Mary Ellen Wilson. In 1874, little 8 year-old Mary Ellen lived in the home of Francis and Mary Connolly. She was the illegitimate daughter of Mary Connolly’s first husband. Etta Wheeler, a “friendly visitor” who worked for a faith-based mission[29] learned from a neighbor that Mary Ellen was being mistreated and went to the home for a visit. “She found Mary Ellen chained to a bed, covered with bruises and scars and a cut on the left side of her forehead made when her ‘foster’ mother sliced her with a pair of scissors.”[30] Etta Wheeler sought help from both police and social service agencies in New York but was turned away. The police said no crime had been committed and the New York City Department of Charities said they could not act because they did not have custody of Mary Ellen.[31] Because there were inadequate laws and institutions to protect children from abuse Etta Wheeler turned, with some tragic irony, to Henry Berge, the founder of the Society for the Prevention of Cruelty to Animals. Berge persuaded his friend Elbridge Gerry to take up Mary Ellen’s cause.[32]

The court removed Mary Ellen from her foster home and placed her in an orphanage.[33] Ultimately the foster mother was imprisoned for a year.[34] The case attracted significant coverage in the media and it led, in December of 1874, to the founding of the Society for the Prevention of Cruelty to Children.[35] Almost immediately other child protection agencies were created around the country.[36]

In 1912 Pres. Theodore Roosevelt championed the creation of the U.S. Children’s Bureau, after convening the first “White House Conference on Children.” The Bureau became responsible for oversight of children’s institutions.[37] In 1935 the passage of the Social Security Act created a funding framework which directed money to be used for the care of children who were neglected, abused or abandoned. However, by 1959, the Child Welfare League of America reported that the delivery of these social services was “uneven and discriminatory” and that children were removed from homes unnecessarily and that foster homes were too often “unstable and undesirable.”[38] It noted that few attempts to reunify families were ever made.[39] While the report was followed by a growth of in-home services that child welfare agencies began to provide in the 1960’s, in truth the four decades from the 20’s through the 50’s saw the memory of Mary Ellen fading in the public consciousness. Little attention in fact was paid to child abuse issues until the reawakening in the 1960’s.

In 1962, Dr. C. Henry Kempe and his colleagues published an article in the Journal of the American Medical Association in which they identified the “battered child syndrome.” It was seminal research that led, it is said, to a national rediscovery of child abuse. Kempe conducted a survey of eighty-eight hospitals in which he confirmed over 300 children who had been “battered,”[40] many of whom suffered brutal multiple injuries. According to Duncan Lindsey, Kempe’s report “ignited a broad-based national effort to find ways to protect children.” This was 40 years ago. The report led to the enactment of mandatory child abuse reporting systems that were supposed to ensure that whenever a child was suspected of being battered, the case would be reported and some intervention would occur to protect the child. Here is how Richard Gelles describes the developments that followed:

Between 1963 and 1967 every state and the District of Columbia passed some form of child abuse reporting law. According to the public policy expert Barbara Nelson, these reporting laws diffused through the states five times faster than the average for public policy innovations between 1933 and 1966. There are various explanations for this speed. Certainly a model reporting law disseminated by the United States Children’s Bureau, an agency within the then Department of Health, Education, and Welfare, facilitated the states’ rapid adoption of reporting laws. Other model laws were drafted by the Council of State Governments, the American Medical Association, and the American Academy of Pediatrics. Rather than confusing the state governments, these various model laws seemed to, in Nelson’s words, “superheat” the demands for legislation.

Madatory-reporting laws had a number of attractive features. First, they “legalized” the problem of child abuse. Second, mandatory –reporting laws were a sign that state government was “doing something” about the problem. Third, and not a trivial factor, was that of all the policy options available, reporting laws appeared to be the least expensive that could address the problem. The last assumption proved to be inaccurate. Physicians, legislators, and government officials had dramatically underestimated the extent of the problem of child abuse and the demand for services that would result from the reporting laws.[41]

Arizona enacted its first mandatory reporting statute in 1964.[42] A nationwide count in 1967 confirmed 6,000 cases of reported child abuse. But a sample survey that accompanied the report estimated based on survey results that there were millions of unreported cases.[43] The under-reporting was attributed to only a small number of covered professionals actually knowing about the law, or knowing how to make a report under it.[44]

Public awareness campaigns and improved telecommunications technology, including the advent of WATS lines, brought an avalanche of reports. Gelles reports that in Florida, in 1970 alone, after a statewide toll free number was installed and a public awareness campaign advertised it, the number of reports went from 17 to 19,000.[45] In 1976 the National Center on Child Abuse and Neglect was newly formed and began to collect the first national data on child abuse reporting. That year the Center reported there were 669,000 reports of child abuse and neglect nationwide. By 1980 the number of reports exceeded 1 million.[46]

Richard Gelles has observed, “The enactment of the reporting laws in the 1960’s essentially decriminalized child maltreatment – with the exception of homicides. Thus child welfare agencies bear almost the complete responsibility for investigating child abuse… [even though the conduct is criminal].”[47] And so the law of unintended consequences reasserted itself and a fundamental conflict in our public policy toward criminally abused and neglected children began to emerge.

When a stranger rapes or assaults a stranger, the police are called and no one questions that a crime has occurred and that it should be investigated, the perpetrator apprehended and brought to justice. By the middle of the 1970’s it was fairly well-established that the very same conduct when committed within the home did not lead to a criminal justice response with the key aim being the protection of the victim and society, but rather to a social welfare response directed at providing “services” to “clients.” And children were left increasingly in harm’s way, even as the ranks of children in foster care swelled. As Richard Gelles has summarized it, “In the 1960’s through the 1970’s, child welfare policy had focused on removing children from dangerous homes. As the number of reports of abuse swelled, so did the number of children removed from their parents. By the late 1970’s nearly … 500,000 children were in foster care.”[48]

The Child Abuse Prevention and Treatment Act (CAPTA) was passed by Congress and signed by the President in 1974.[49] It provides federal funding to the States in support of prevention, assessment, investigation, prosecution,[50] and treatment activities, among others. CAPTA also sets a minimum definition of child abuse and neglect.[51] CAPTA has been amended several times since its original enactment, but continues as the principal source of authorization for federal funding assistance for State child abuse and neglect prevention efforts.[52]

In 1977, the U.S. Supreme Court reviewed several social problems that began to develop in the child welfare system.[53] Children were found to remain in foster care for years, on average more than four, with many remaining in the system indefinitely.[54] The Court noted that funds promoted continued foster care rather than reunification.[55]

Against this developing backdrop, the Congress enacted and the President signed into law the Adoption Assistance and Child Welfare Act of 1980.[56] This Act is generally considered the most significant legislation in the history of child welfare.[57]

In response to the foster care problem that had emerged in the 1970’s, the Congress placed stronger emphasis on family preservation and reunification and extended these requirements to state child welfare systems. As Mary O’Flynn explains it, “Before enactment of P.L. 96-272, states could only receive federal reimbursement for cases in which children were physically removed from the home and placed in foster care. [Fn. omitted] P.L. 96-272 marked the first attempt by the federal government to provide financial incentives to states to reduce the time each child spent in foster care and to implement permanency planning for foster children. [Fn. omitted].”[58]

Among the more consequential of its provisions, P.L. 96-272 required that each State submit a plan that had to contain certain provisions as a condition to the receipt of federal money. Among the plan’s requirements was a provision that “in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home….”[59] Two contradictory philosophies emerged from the act.

The first was permanency planning, which assumed that prompt and decisive action to maintain children safely in their homes, or to place them as quickly as possible in permanent homes with other families, was the most desirable goal of child welfare services. The second goal was embodied in the words reasonable efforts … .

States had to demonstrate that they made reasonable efforts and that they were in compliance with the permanency planning provision of the law in order to qualify for federal funding for adoption and foster care

Despite the law’s good intentions, it planted seeds of trouble. The goal of child protection services became safeguarding children while also working to reunite them with their abusive parents. The assumption was that these mandates could be balanced successfully. The reality was that the demands were contradictory.

One problem was the ambiguity around the very concept of “reasonable efforts.” Nowhere in the federal legislation, state policy, or ensuing legal decisions in state courts were “reasonable efforts” ever clearly defined. As a result, child protection workers, administrators, and legal staff had no guidelines for how much or how long they had to make “efforts” at reunification before moving to permanent placements for abused and neglected children. Similarly, the inherent and dangerous contradiction between ensuring safety and attempting to reunite abusive parents with abused children was never publicly acknowledged by federal or state officials.[60]

Despite fundamental contradictions, support for family preservation and reunification programs crossed political and philosophical lines. Conservatives supported the new emphasis on family sanctity and the limitations on government intervention into the private sphere of the family; liberals endorsed the programs as continuing in the tradition of government welfare to needy citizens.[61] The programs promised saving money, strengthening families, and protecting children all at the same time.

A decade after the passage of the Adoption Assistance and Child Welfare Act states were “running pell-mell into family preservation without fully considering the evidence for it,” according to sociologist Peter Rossi.[62] The high point of the family preservation movement nationally may have been the enactment in 1993 of the Family Preservation and Child Protection Reform Act. Signed by Pres. Bill Clinton, the act has authorized hundreds of millions of dollars for family preservation programs. Richard Gelles calls the programs a “failure.”

The promises were compelling… and soon unfulfilled.

Family preservation programs relied on the “reasonable efforts” requirement of the federal law for their legal justification. The combination of these two factors, the growth of family preservation funding and the legal standard which supported it, led once again to unintended consequences.

The intent of the reasonable efforts requirement was to help families remain together by providing needed social services and to reunify families who were separated as a result of foster care. Without a clear definition of the term, it has been subject to varying interpretation, with unintended consequences for children and families. The legislative history of ASFA highlights some of the problems arising under the reasonable efforts term in P.L. 96-272. For example, in some cases social workers and the courts have been accused of interpreting the term too broadly and favoring parental rights over those of children by supplying services for extended amounts of time. The reasonable efforts requirement has been similarly criticized as placing children at risk by forcing children to remain in the system for unreasonable lengths of time.

The reasonable efforts standard was created to enhance family preservation and reunification services, rather than being used as a device to keep children in the foster care system for extended periods or to return a child to a dangerous or abusive home. The failure of P.L. 96-272 was vividly illustrated by a series of highly publicized child deaths nationwide and by the rapid growth of a foster care population which more children enter than exit each year.[63]

In 1997, Congress passed the Adoption and Safe Families Act.[64] It was intended to address some of the problems that had arisen in the interpretation of the “reasonable efforts” requirement in the intervening 17 years since its first adoption.[65] The Act extensively amended paragraph 15 of

42 U.S.C. §671a, by enumerating specific circumstances in which the Federal Government would not require “reasonable efforts” to “preserve and reunify families.” These circumstances include when the “parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse.)” Reunification services are not required when a child has been subjected to torture, but neither are they prohibited.

Arizona has enacted statutes that address the issues and child abuse and the requirements of the federal law that will be examined in Chapter Four.

CHAPTER THREE: THE SCOPE OF THE PROBLEM

National

In 2000, the latest year for which data is available, 3,000,000 calls came into child protection agencies nationwide concerning the welfare of approximately 5,000,000 children; of these referrals 62% were “screened-in” or accepted as reports.[66] Screened-in referrals alleging that a child was being abused or neglected received investigations or assessments to determine whether the allegations of maltreatment could be substantiated. Thirty-two percent of the investigations nationwide resulted in a finding that the child was maltreated or at risk of maltreatment.

Approximately 879,000 children were found to be victims of child maltreatment. Maltreatment categories include neglect, physical abuse, sexual abuse, and psychological maltreatment. Almost two-thirds of child victims (63%) suffered neglect, 19% were physically abused, 10% were sexually abused, and 8% were psychologically maltreated.

The rate of child victims per 1,000 children in the population was 12.2 in 2000, up slightly from the year before, but lower than the rate in 1993 (15.3). Within the child age population, victimization rates for children under three (15.7) were 3 times the rate for children 16 and 17 (5.7). Victimization rates were similar for male and female victims (male 11.2; female 12.8) however, girls were much more likely to be victims of sexual abuse (1.7 v. 0.04).

Approximately 1,200 children died of abuse or neglect in 2000, a rate of 1.71 children per 100,000 children in the population. Youngest children were the most vulnerable. Children younger than one accounted for 44% of child fatalities and 85% of child fatalities were younger than 6 years of age.

Arizona

Arizona child abuse reports from DES are compiled semi-annually on a fiscal year basis, so Jan.-Dec. calendar numbers are not routinely reported.[67] However, in the 12-month period from April 1, 2000 to March 31, 2001 the numbers for Arizona are reported.

During the 2000 - 2001 reporting period, there were a total of 32,441 reports of child abuse, neglect and abandonment[68] received by the central intake unit of DES Child Protective Services. (In the latest 12-month period the rate is running over 34,000 reports a year.) Of these reports, 3,070 were substantiated,[69] representing a substantiating rate of 9.4% compared to the reported national rate of 32%. This comparison of substantiation rates raises a question which deserves further inquiry. Why should Arizona’s rate be below the national average? Taking a closer look at the trends in Arizona reveals an issue which needs additional research. The report and substantiation data for the last several years is as follows:

Reports Substantiated Rate

July 1, 1996 – June 30, 1997 38,229 14,394 37.6

July 1, 1997 – June 30,1998 38,381 (NA) (NA)

July 1, 1998 – June 30, 1999 32,631 3,629 14

Oct. 1, 1999 – March 31, 2000 16,301 1.524 9.3

April 1, 2000 - Sept.30, 2000 16,047 1,789 11.1

Oct. 1, 2000 – March 31, 2001 16,394 1,281 7.8

April 1, 2001 – Sept. 30, 2001 17,064 1,496 8.7

Oct. 1, 2001 – March 31, 2002 17,504 1,484 8.4

The chart raises the question of why the substantiation rates in Arizona dropped and have remained low. Are children in Arizona so much less likely to be victims of abuse and neglect? Are the investigations inadequate to determine what actually happened? Are there too few workers to investigate? Is the standard for substantiation somehow higher in Arizona than nationally? The answer to the question is particularly important when national substantiation rates are considered.

U.S. Rate[70]

1996 28.5

1997 29

1998 26.2

1999 26.6

2000 28

In January of 1998 the state instituted the Family Builders Pilot Program which was designed to provide services to families who were the subject of “lower priority” CPS reports.[71] The lower substantiation rates may be related to the alternative way in which reports have been handled since the initiation of this program. They may be related to the appeals process the state has established or to the lack of clear guidelines as noted by the Auditor General’s Office in its November, 2002 Report. Equally curious is the drop in the absolute numbers of reports. From 1991 to 2001 the number of children 0 – 14 in Arizona increased by almost 50%.[72] Can it be possible that the real numbers of reports of abuse or neglect have in fact gone down from 38,229 in FY 98 to 34,568 in the last annual reporting period? Or are different criteria being applied to qualify a call as a report? These questions deserve additional inquiry.[73]

However the numbers of reports, investigations, and substantiations are measured, the raw numbers reveal an enormous challenge.

A.R.S. §13-3620 requires a health care professional who believes that a newborn infant may be affected by the presence of alcohol or a dangerous or narcotic drug to report the fact to CPS. But no law requires CPS to maintain, compile, and publicly report these births. Moreover, no law currently requires that law enforcement be called whenever a newborn is born affected. So we do not know the full scope of this problem.

CHAPTER FOUR: CURRENT LAW

One main theme emerges from examining the case law, statutes, and rules which follow: there is uncertainty, overlap, and ambiguity in the principles which govern how we apply the definitions of criminal child abuse and neglect in practice. How that uncertainty manifests itself is a question which requires a consideration first of the legal principles that are discussed in this chapter and next, by the voices of the experts we report in the next chapter.

U. S. Supreme Court

Parents’ Rights Are Deemed Fundamental, But The State Has The Right And Duty To Protect Minor Children

Federal and State statutes addressing child abuse and neglect, child removal, or family preservation and reunification all exist in the shadow of the United States Constitution. The Supreme Court of the United States has frequently emphasized the constitutional protection afforded the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer V. Nebraska, 262 U.S. 390 (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535 (1942), and “rights far more precious than property rights,” May v. Anderson, 345 U.S. 528 (1953), “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder,” Prince v. Massachusetts, 321 U.S. 158 (1944).

The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479 (1965). In Stanley v. Illinois, the Court found that the interest of a man “in the children he has sired and raised undeniably warrants deference and, absent a powerful countervailing interest, protection.”[74] However, Justice White, in his opinion, went on to foreshadow a circumstance when there may be just such a “powerful countervailing interest” when he wrote, “The State’s right – indeed, duty – to protect minor children through a judicial determination of their interests in a neglect proceeding is not challenged here.”[75]

The Burden of Proof Required to Terminate Parental Rights: Clear and Convincing

In Santosky v. Kramer[76] the Court held that before a state may sever completely and irrevocably the rights of parents in their natural children, due process requires that the state support its allegations by at least clear and convincing evidence. The Court noted the “historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.”[77]

The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.[78]

Arizona Courts

The Rights Of Arizona Parents Are Fundamental, But Not Absolute, And May Be Terminated As Provided By The Legislature

Arizona Courts have repeatedly held that a parent’s right to the custody and control of his or her children is a fundamental right guaranteed by the United States Constitution. A typical and recent description of this right is found in Michael M. v. Arizona Department of Economic Security:[79]

A parent's right to "the companionship, care, custody, and management of his or her children" is a fundamental, constitutionally protected right, Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972); see also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), as is the right of association with one's children. In re Maricopa County Juvenile Action No. JD-5312, 178 Ariz. 372, 873 P.2d 710 (App.1994). These fundamental rights do " 'not evaporate simply because' the natural parents 'have not been model parents or have lost temporary custody of their child to the state.' " In re Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 4, 804 P.2d 730, 733 (1990), quoting Santosky, 455 U.S. at 753, 102 S.Ct. at 1395, 71 L.Ed.2d at 606.

The Arizona Supreme Court has expressed the general law and context in which child abuse and neglect issues and parental rights must be considered:

Severance of parental rights necessarily involves the consideration of fundamental, often competing, interests of parent and child. "This court and the United States Supreme Court have long recognized that the right to the control and custody of one's children is a fundamental one." In re Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 4, 804 P.2d 730, 733 (1990) (Action No. JS-500274 ). "[T]his fundamental right 'does not evaporate simply because' the natural parents 'have not been model parents or have lost temporary custody of their child to the state.' " Id. (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982)).

The right of a parent to custody of his child, however, is not absolute. The State can terminate parental rights under specified circumstances and procedures. In Arizona, "[t]ermination of parental rights is **685 *249 governed solely by A.R.S. § 8-533." In re Pima County Juvenile Severance Action No. S-114487, 179 Ariz. 86, 95, 876 P.2d 1121, 1130 (1994) (Action No. S-114487 ). To justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533, and also that termination is in the best interest of the child. See A.R.S. § 8-533.B.[80]

Duty to Reunify

Division One of the Arizona Court of Appeals has ruled reunification efforts must be undertaken in the case of a parent whose mental disability prohibits proper parenting.[81]

In Mary Ellen C., the question was whether the state was required to make reasonable efforts to reunify the family before seeking severance on the statutory basis that the parent suffers "a mental illness of prolonged and indefinite duration."[82] The court noted that the requirement that ADES make an effort to reunify the family was based on "the fundamental liberty interest of the natural parents in the care, custody and management of their child." (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). The court concluded that “fundamental interests are no less involved in mental illness-based severances than in others” and that “termination of the parent-child relationship should not be considered a panacea but should be resorted to only when concerted effort to preserve the relationship fails.” But the court also noted that the State need not “undertake rehabilitative measures that are futile,” but only that it had “to undertake measures with a reasonable prospect of success.” The court concluded, in order to terminate parental rights, ADES is required to prove, by clear and convincing evidence, that "it had made a reasonable effort to provide [the mother] with rehabilitative services or that such an effort would be futile."

In a later case the same court identified limits on the duty to reunify. In Toni W. v. Arizona Dept. of Economic Sec.[83]the court reviewed a case involving a mother who allegedly abandoned her child at birth.

In this opinion we address whether the Arizona Department of Economic Services (ADES) had a duty to offer reunification services to the mother before petitioning for severance...

The mother argues that ADES had a duty to make a "concerted effort" to unify the family before terminating her parental rights pursuant to federal law and A.R.S. § 8-533(B)…

The federal law to which mother refers requires that, to be eligible for federal grants for child welfare services, ADES must have a plan for foster care and adoption assistance that, among other things, provides that reasonable efforts will be made to both prevent or eliminate the need to remove a child from the home, and to make it possible for the child to safely return to the home. 42 U.S.C. § 671(a)(15)(B). These reunification efforts, however, are not required in all situations.

For example,

[R]easonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that--
(1) the parent has subjected the child to aggravated circumstances (as defined by State law, which definition may include but need not be limited to abandonment....) 42 U.S.C. § 671(a)(15)(D).

Thus, the federal law has recognized the futility of requiring that "reunification services" be provided in an abandonment situation.

The United States Supreme Court has long recognized that the fundamental right of parents to the care, custody, and control of their children is protected by the due process clause of the United States Constitution. Santosky v. Kramer, 455 U.S. at 753, 102 S.Ct. 1388. However, the Court has also recognized that "the mere existence of a biological link does not merit equivalent constitutional protection." Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).

In the absence of such a [nurturing] parental relationship, a biological parent's interest in the child is nothing more than a genetic link, unaffected by a termination of parental rights.

This passage makes several things clear. First, some reunification efforts may be mandated on constitutional grounds, based on "the fundamental liberty interest of the natural parents in the care, custody and management of their child." Santosky v. Kramer, 455 U.S. 745, 753 (1982).

Second, the right to reunification efforts, however, is not absolute. The Supreme Court has recognized that "the mere existence of a biological link does not merit equivalent constitutional protection." Lehr v. Robertson, 463 U.S. 248, 258, (1983). As Justice White noted, “The State’s right – indeed, duty – to protect minor children through a judicial determination of their interests in a neglect proceeding is not challenged….”[84]

Reunification efforts are not required, applying a fair reading of both federal and state law, to establish the statutory ground of abandonment. The law is clearer in the case of physical abuse.

Statutes and Rules

Just as Federal and State statutes exist in the shadow of the U.S. Constitution, so too the case decisions of the courts arise in the context of, and are decided in the shadow of, statutes passed by legislative bodies.

Federal Statutes

The principal federal statute remains CAPTA. CAPTA requires that a state, in order to be eligible to receive federal money for child abuse and neglect prevention programs, must have a “plan” that coordinates with the planning requirements for adoption assistance money [as set forth in the Adoption and Safe Families Act, see below] and, among other things, must contain:

(i) provisions or procedures for the reporting of known and suspected instances of child abuse and neglect;

(ii) procedures for the immediate screening, safety assessment, and prompt investigation of such reports;

(iii) procedures for immediate steps to be taken to ensure and protect the safety of the abused or neglected child and of any other child under the same care who may also be in danger of abuse or neglect and ensuring their placement in a safe environment;

(iv) provisions for immunity from prosecution under State and local laws and regulations for individuals making good faith reports of suspected or known instances of child abuse or neglect;

(v) methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child's parents or guardians,

…

(vii) the cooperation of State law enforcement officials, court of competent jurisdiction, and appropriate State agencies providing human services in the investigation, assessment, prosecution, and treatment of child abuse or neglect;

…

(xii) provisions, procedures, and mechanisms … that assure that the State does not require reunification of a surviving child with a parent who has been found by a court of competent jurisdiction--

(I) to have committed murder (which would have been an offense under section 1111(a) of Title 18 if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of such parent;

(II) to have committed voluntary manslaughter … of another child of such parent;

(III) to have aided or abetted, attempted, conspired, or solicited to commit such murder or voluntary manslaughter; or

(IV) to have committed a felony assault that results in the serious bodily injury to the surviving child or another child of such parent; and

(xiii) an assurance that, upon the implementation by the State of the provisions, procedures, and mechanisms under clause (xii), conviction of any one of the felonies listed in clause (xii) constitute grounds under State law for the termination of parental rights of the convicted parent as to the surviving children (although case-by-case determinations of whether or not to seek termination of parental rights shall be within the sole discretion of the State);

As originally enacted, CAPTA required “reasonable efforts” to reunify an abused child with his abuser. The “reasonable efforts” requirement has narrowed in the CAPTA requirements for the state plan and has been clarified and narrowed by the Congress through the Adoption and Safe Families Act of 1997.

After the Adoption and Safe Families Act amendments, 42 U.S.C. § 671a now provides that in order to qualify for grants to States for foster care and adoption assistance money, the State plan must:

(15) provide[s] that--

(A) in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child's health and safety shall be the paramount concern;

(B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families--

(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and

(ii) to make it possible for a child to safely return to the child's home;

(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child;

(D) reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that--

(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse);

(ii) the parent has--

(I) committed murder (which would have been an offense under section 1111(a) of Title 18, if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;

(II) committed voluntary manslaughter (which would have been an offense under section 1112(a) of Title 18, if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;

(III) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or

(IV) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or

(iii) the parental rights of the parent to a sibling have been terminated involuntarily;

(E) if reasonable efforts of the type described in subparagraph (B) are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with subparagraph (D)--

(i) a permanency hearing (as described in section 675(5)(C)) shall be held for the child within 30 days after the determination; and

(ii) reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child; and

(F) reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in subparagraph (B).

These two federal laws, CAPTA and Adoption and Safe Families Act, drive much of what must be contained in Arizona statutes governing termination and dependency actions, and the CPS response to allegations of child abuse and neglect in general.

Confidentiality

CAPTA requires that States adopt “methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child's parents or guardians.” (Emphasis added). It goes on to make several exceptions.

Arizona had responded to this requirement with A.R.S. § 8-807. The statute provides that “department records on specific cases of child abuse and neglect are confidential.” There then follows a long list of exceptions.

Criminal Child Abuse and Neglect in Arizona Statutes

The principal statute defining criminal child abuse is A.R.S. §13-3623. The elements of the offense focus on the standard of harm or likely harm to the victim. It is set forth here in relevant part:

13-3623. Child or vulnerable adult abuse; emotional abuse; classification; exception; definitions

A. Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense … .

B. Under circumstances other than those likely to produce death or serious physical injury to a child or vulnerable adult, any person who causes a child or vulnerable adult to suffer physical injury or abuse or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense … .

C. For the purposes of subsections A and B of this section, the terms endangered and abuse include but are not limited to circumstances in which a child or vulnerable adult is permitted to enter or remain in any structure or vehicle in which volatile, toxic or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug in violation of section 13-3407, subsection A, paragraph 4.

…

F. For the purposes of this section:

1. "Abuse", when used in reference to a child, means abuse as defined in section 8-201, except for those acts in the definition that are declared unlawful by another statute of this title …

2. "Child" means an individual who is under eighteen years of age.

…

4. "Physical injury" means the impairment of physical condition and includes any skin bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition that imperils health or welfare.

5. "Serious physical injury" means physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.

It is a crime in Arizona to “cause a child to suffer physical injury or abuse” or to “cause or permit a child… to be placed in a situation where the person or health of the child is endangered.”

“Physical injury” is defined within the statute. The definition expands the definition of the same phrase found in A.R.S. §13-105, by which “physical injury” means simply the “impairment of physical condition.” The definition of “abuse” is referenced to A.R.S. §8-201:

"Abuse" means the infliction or allowing of physical injury, impairment of bodily function or disfigurement or the infliction of or allowing another person to cause serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and which emotional damage is diagnosed by a medical doctor or psychologist pursuant to section 8-821 and is caused by the acts or omissions of an individual having care, custody and control of a child. Abuse shall include inflicting or allowing sexual abuse pursuant to section 13-1404, sexual conduct with a minor pursuant to section 13-1405, sexual assault pursuant to section 13-1406, molestation of a child pursuant to section 13-1410, commercial sexual exploitation of a minor pursuant to section 13-3552, sexual exploitation of a minor pursuant to section 13-3553, incest pursuant to section 13-3608 or child prostitution pursuant to section 13-3212.

The elements of the offense focus on the definition of physical injury. Note again, “physical injury" means the impairment of physical condition and includes any skin bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition that imperils health or welfare.

Parsing through the definitions, it is readily apparent that “causing a child to suffer any skin bruising,” for example, or “any impairment of physical condition or bodily function” or “serious emotional damage” is a felony. If it is done intentionally, and the circumstances are such that the conduct is likely to produce death or serious physical injury, it may be a class 2 felony, punishable as a dangerous crime against children (meaning the sentences are long and mandatory). “Serious physical injury” means physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.

If the circumstances are other than those likely to produce death or serious physical injury, then the abuse may be up to a class 4 felony, if it is intentional, and a class 6 felony (and therefore potentially a misdemeanor) if done with criminal negligence. An act is done with “criminal negligence” if the actor is unaware of a substantial and unjustifiable risk that the result (the child’s injury) will occur and that unawareness is a gross deviation from the standard of care that an ordinary person would observe.[85]

Neglect

“Neglect” is less clearly defined in the criminal law of Arizona. By inference, some “neglect” conduct is covered by the abuse statute. “Permitting” the “person or health of a child” to be “injured” or “endangered”[86] is surely a form of neglect. So is “permitting” a “minor’s” “health to be injured by neglect.” A.R.S. §13-3619 makes the foregoing a misdemeanor. It does not include a definition of the word “neglect.”

Dependency

A.R.S. §13-3612 makes “contributing to delinquency and dependency” of a child a class 1 misdemeanor. A “dependent child” is one, among several standards included in the statute, who is “found wandering and not having a home” or whose home is “unfit” by “reason of neglect, cruelty, or depravity.”

Assault

A person may commit an assault on a child by “intentionally, knowingly, or recklessly causing any physical injury,” or placing the child “in reasonable apprehension of imminent physical injury,” or “knowingly touching [the child] with the intent to injure, insult, or provoke.”[87] If the child is under the age of 16 the assault is an aggravated assault, punishable as a class 6 felony, which may be treated as a misdemeanor.[88]

Defining Child Abuse and Neglect for Termination and Dependency Under our statutes, in addition to criminal sanctions, abuse and neglect may also lead to the state intervening into the parent-child relationship by terminating it or temporarily interrupting it.

Title 8 of the Arizona Revised Statutes contains the laws which govern dependency, termination, and reunification issues. Key provisions are compiled and set forth in Appendix A.

A.R.S. § 8-533 (B) sets forth the “evidence sufficient to justify the termination of the parent-child relationship.” [89] Note that the word “justify” does not require the court to sever in any cases, but rather merely authorizes. Among its other provisions, the statute includes as grounds for termination that the parent has “abandoned the child” or has “neglected or wilfully abused the child.”

The statute also justifies termination when the child has already been removed and the state made “a diligent effort to provide appropriate reunification services” but , within a period of nine months or more after the removal of the child the parent has “neglected or wilfully refused” to correct the circumstances that led to the removal,[90] or the child has been in an out-of-home placement for “a cumulative total period of fifteen months or longer” and the parent is unable to correct the circumstances that led to the removal and there is “a substantial likelihood” that the parent won’t change.[91]

Additionally, the statute “justifies” termination if the child was removed from the parent, then returned after “diligent reunification efforts,”[92] then removed again, and the parent is unable to change.

However, in each of the foregoing cases, the law requires again that the court “shall consider the availability of reunification services.”[93]

Grounds For Removal And Due Process Protections

A.R.S. § 8-821, et seq., governs the taking of a child into temporary custody. Under the statute, a “child shall be taken into temporary custody in proceedings to declare a child a temporary ward of the court to protect the child, pursuant to an order of the juvenile court on a petition by an interested person, a peace officer or a child protective services worker under oath that reasonable grounds exist to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect.” The statute continues that a “child may be taken into temporary custody by a peace officer or a child protective services worker if temporary custody is clearly necessary to protect the child because the child is either: 1. Suffering or will imminently suffer abuse or neglect; or 2. Suffering serious physical or emotional damage that can only be diagnosed by a medical doctor or psychologist.”

Following taking a child into temporary custody, the statutes mandate notice and subsequent hearings to be held very quickly. In most cases written notice to the parents must be provided within 6 hours, in some cases sooner.[94] Within five to seven days of the taking of the child into temporary custody, the court must hold a “preliminary protective hearing.” If the court finds “probable cause to believe that continued temporary custody is clearly necessary to prevent abuse or neglect pending the hearing on the dependency petition” the court may continue the temporary custody. Before this hearing there is an obligation for the parties to meet and attempt to reach agreement about the placement of the child.[95] Throughout these statutes there is an emphasis both on using family-reunification services, unqualified by the extent of the abuse or neglect, and on the health and safety of the child; these two standards existing side-by-side in an uneasy coexistence.

If a child is determined to be dependent because of, among other things, abuse, neglect, or abandonment, the court may, nonetheless, award the dependent child “[t]o the care of the child’s parent’s, subject to the supervision of the department of economic security.”

A.R.S. § 8-861 provides that a child who has been removed from a parent, after the temporary custody hearing, on request of the parent, “shall… be returned to the child’s parent or guardian if the court finds by a preponderance of the evidence that the return of the child would not create a substantial risk of harm to the child’s physical, mental or emotional health or safety.”

The study has identified compilations of laws from other states that address child abuse and neglect. These statutes are attached as Appendix B. A summary of case law is attached at Appendix C.

Arizona DES Administrative Rules

The rules which have been promulgated by DES to further implement the foregoing statutes are contained in R6-5-5501 et seq. According to these rules a report of “child maltreatment”[96] may not be “substantiated” unless “a CPS Specialist has concluded, after an investigation, that there is probable cause to believe an alleged abuser committed an act of child maltreatment.” (Emphasis added). There is no statutory requirement that “maltreatment” may be substantiated only after identifying the abuser; it is merely a product of DES rule.

The rules further provide reports of child abuse or neglect may be referred for “alternative investigation” or to the family builders program.[97]

When a decision to investigate an allegation is made, the rules permit the CPS Specialist to exclude or include the alleged abuser from participating in an interview with the victim. R6-5-5508 (C). When conducting the investigation, the rules allow, but do not require, CPS to consult with law enforcement. R6-5-5508 (B) (6). A.R.S. § 8-304 places primary responsibility for “the complete investigation of all complaints of alleged dependency” on “child protective services specialists” within DES.

CPS may “substantiate” a case of child abuse or neglect but determine there is no “risk of imminent harm to a child” and close the case. There is no definition of imminent harm, but the rules enumerate several circumstances where it might be found. The enumeration found in R6-5-5512 includes “severe or serious non-accidental injuries that require immediate medical attention.” Injuries not meeting this standard do not, in and of themselves, give rise to a finding of imminent risk. This means that recent, but healing, injuries do not qualify, even though they may have been “severe.”

In situations where “severe or serious non-accidental injuries that require medical care” are found, CPS is authorized, pursuant to its own rule, R6-5-5513, to allow the abuser to leave the home. R6-5-5511 (C) requires that “CPS shall offer a family voluntary protective services before filing a dependency action.” After removing a child, CPS has 48 hours to file a dependency petition, or return the child, R6-5-5514. A.R.S. § 8-821 now allows 72 hours.[98]

There are substantial parallels in the definitions of abuse and neglect to the criminal statutes, so that the very same conduct that subjects a person to criminal prosecution also is grounds for termination or dependency. As noted above, A.R.S. §8-201 (2) defines “abuse” to include “the infliction or allowing of physical injury.” Clearly conduct of this nature is also criminal. The decision to proceed one way or the other is not always made consciously with every stakeholder at the table.

In A.R.S. §8-201 (21), "[n]eglect" means the inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes substantial risk of harm to the child's health or welfare, except if the inability of a parent or guardian to provide services to meet the needs of a child with a disability or chronic illness is solely the result of the unavailability of reasonable services.

These cases, statutes, and rules form the structure of the legal system our government, federal and state has constructed to address child abuse and neglect. Within this legal structure, real people must address the real problems of criminally abused and neglected children. How the system actually works, fails, and is perceived, is best heard in the voices of those professionals on the front lines. We turn now to their voices, the voices from the field.

CHAPTER FIVE: VOICES FROM THE FIELD: COMMENTS AND FIELD RECOMMENDATIONS

The foregoing chapters have provided an overview of Arizona’s case law, statutes, and rules; it is by no means exhaustive. To understand what professionals “in the trenches” are seeing, and to hear what they recommend the study went in to the field and conducted 163 interviews with key professionals.

No effort was made to select or screen the individuals for any particular views or philosophies. No preconditions were set on what those interviewed could say. Every interview followed a list of set questions for consistency but no censorship was imposed on the views expressed. In the following chapter the views and recommendations that emerge are remarkably consistent given the diversity of professionals who were interviewed.

Throughout our report on “voices from the field” we have attempted to remain faithful to the concerns and recommendations as they were given to us. The “voices” are reported in the words that were given to us.

So let us turn to the professional voices from the field.

From September, 2002 to January, 2003 interviews were conducted with 163 professionals in the fields of law enforcement, prosecution, the judiciary, CPS workers, medicine and nursing, social work, foster parents, community service providers, and other allied professionals. The questions asked of each group are attached at Appendix D.

The results of the interviews, the opinions given and recommendations made are summarized below. A complete table of responses follows the summary narrative.

Purpose of the system, individual roles and interests

Regardless of their role in the child welfare system, from those interviewed, there is a consensus that the first priority of the system ought to be working for the safety and well being of children. Perhaps to state that is to state the obvious. Yet the surveys also reveal that this is too often not the first priority in practice, despite the best intentions of those who work to make it so. There is also a strong sense of advocating and helping children who have been victimized, along with protecting and preventing future or recurring abuse. Most, if not all of those interviewed indicated a strong commitment to children and desire to help families succeed (see Tables 1-4).

While most of the comments focused around child safety, protection and well-being, it was evident from the comments of CPS workers that they struggle with another perception of their mission – keeping families together.

Interface with CPS

Interaction typically takes place when CPS notifies the police, community service agency, or medical professional and vice versa. That notification can vary in both quantity and quality depending on the circumstances and individuals involved. It is evident that all of these professionals play a significant role and must work together to successfully provide for the safety of children (see Table 5).

Opinion of CPS

Of those who interact with CPS on a regular basis, most had issues with CPS (see Table 6).

Most police officers noted their problems with investigations when CPS is involved and the different timelines they operate under. Additionally, many others noted relationship problems and the recognition that CPS workers are overworked and lack the resources, training, and knowledge to do the job adequately.

More importantly, most felt their primary goal and that of CPS frequently conflicted. While those outside of CPS saw their primary purpose as child safety and protection, many felt CPS’ focus was family reunification. When questions were posed to CPS workers regarding case planning and evaluation, many responded that they evaluated based on the primary goal of reunification (see Table 7). This goal conflict was also evident when CPS workers were asked questions regarding their understanding of “reasonable efforts” (see Table 8).

Examples of dissatisfaction

Police officers, physicians and medical social workers were asked to give examples of their dissatisfaction with CPS or cases they were aware of that resulted in a bad outcome. Multiple specific cases are noted in following areas: 1) multiple prior reports to CPS; 2) victims who recant their story or fail to cooperate; 3) lack of evidence; 4) children that should not have been reunited with family; 5) policy problems; and 6) examples where CPS failed to act (see Table 9).

COMMON ISSUES IDENTIFIED BY SURVEY PARTICIPANTS

Child Abuse Risk Factors

The top consensus responses among the different professions interviewed (see Tables 10 and 11):

§ Substance abuse

§ Financial instability and poverty

§ Lack of education and job skills

§ Families isolated with no family or community support

§ Stress or domestic violence in the home and/or a history of abusive relationships

§ Lack of parenting skills and teen parents

§ Mental illness

§ Continued domestic violence and/or mental health problems

§ Lack of support to correct problems in the home

§ The failure of the system

All of those interviewed stated that substance abuse is evident in the majority of cases they see. Parents who abuse drugs or alcohol are more concerned with the drug versus the welfare of their children. Male adults who use drugs often let their inhibitions down allowing sexual or physical abuse to occur. Women often physically abuse or neglect their children, because the kids are getting in the way of their drug use (see Table 12).

Caseload

Judges continue to see child abuse and neglect as pervasive social problems (see Table 13). They feel that these types of cases are more time consuming and require additional investigation and evaluation.

Police officers and detectives interviewed saw a wide range in caseloads. The typical response was in the 20 to 50 per month range, with some officers indicating a caseload as high as 70 to 100 open cases per month. All seem to agree that their caseloads are overwhelming. Some indicated that the ideal caseload needed to be less than 30 per month.

The average caseload of those CPS workers interviewed ranged widely as well -- most in the range of 12-20 on-going cases (children) per worker. High caseloads and the demands of the job were also noted as reasons for high caseworker turnover. When asked on average how many times a case worker can change on a case, some indicated 2-3 times while others noted the fact it could be higher.

Child abuse protocol

While most police officers and CPS workers understand that a protocol exists, many indicated they have difficultly following it for several reasons (see Table 14). Typically it had to deal with a lack of time and resources to follow it accurately or a general lack of knowledge or experience in how to handle cases. The tension between various police departments and CPS was also evident with many officers feeling that a breakdown in protocol by CPS can lead to problems in investigations. When the question was posed to police officers whether there should be a referral to law enforcement for every CPS case, the overwhelming response was no (see Table 15). Mainly due to the amount of manpower and resources it would take to do the investigations adequately. Respondents believed the police should do all criminal investigations and that CPS, should deal with non-criminal problems and help families. If there is overlap with matters that are also criminal CPS should be required to follow the protocol.

Timeframes

The conflicts between police departments and CPS in the time required to complete an investigation was also a major concern. While a CPS worker has their timeframe spelled out by priority, many police officers noted no real standard (see Table 16). Most would agree however, that these timeframes and expectations are unrealistic and many feel pressed for time to adequately do the job. When police officers were asked what time would be needed to finish the case, most recognized the fact that it needs to be completed as soon as possible to prevent further abuse and to increase the chances for a successful prosecution (see Table 17). Most police officers admit that the majority of the time they fail to meet a deadline they feel is necessary to successfully complete an investigation. CPS workers believe they complete timelines; however police officers and others expressed grave concern that they often close cases too prematurely and are reluctant to evaluate and monitor cases at an appropriate level.

Resources

Frustrations by the lack of manpower and resources were evident by those on the front lines – police officers and CPS workers (see Table 18). Others were also sympathetic to the fact that the system is overloaded without the proper resources to ensure the safety of all children. It is generally understood that more resources would allow the system to concentrate on quality versus quantity.

The issue of resources also came up when it came to placement options for abused and neglected children. Part of the reason many feel that children stay in a “risky” situation is the inability to place them elsewhere. Questions were even raised as to the quality of the placement options that were available, i.e. shelters and foster homes.

Training

The feeling of inadequate training and knowledge about all aspects of the system was evident in all the interviews that were conducted. While many, including CPS workers themselves, blamed the lack of skilled CPS caseworkers, others pointed the finger at all members of the system who need to have a greater understanding of child abuse and other family issues. Police officers themselves also indicated a strong desire for more training.

Family Services

All of those interviewed understood the need and value of excellent treatment and other resources to help families succeed. However, many raised the fact that the quality and availability of services was inadequate. Others questioned their effectiveness. Part of the problem stems from the voluntary nature of these services and that lack of accountability of families who agree to receive services.

Lack of Cooperation/Communication

Many raised problems when it came to working with each other. One CPS worker seemed to express it best when she indicated that is seems like the goal of the system “is not to work with other agencies.” Territoriality and a lack of accountability contribute to agencies operating in isolation from one another. There was evident a lack of communication and cooperation voiced by different members of the system throughout the interviews. In particular the need to share and receive vital information that will assist in the proper handling of cases from one member of the system to the next was needed. CPS confidentiality policies were viewed by many as a significant reason for this.

Legal and Policy Issues

A whole range of legal and policy issues were raised throughout the questioning of all individuals. Many of these issues that surfaced are addressed under the recommendations. Issues related to the vagueness of neglect laws; conditions in which an abuse or neglected child should be reunited with a family; what should be done with babies born substance-exposed; and the need for mandatory services to ensure that families receive the help that they need, are but a sampling of issues raised (see Tables 18, 19 and 20).

RECOMMENDATIONS OF SURVEY PARTICIPANTS BY PROFESSION

Judges

The top recommendations among the judges interviewed include (see Table 21):

Resources

§ Resources available for parents to get help.

§ Provide adequate resources for dedicated professionals to do their job.

Policy

§ In all cases, the child’s safety should be the paramount concern.

§ Look at all available research, as well as best case practices and determine what is appropriate.

§ Mandatory and combined training and certification on abuse issues for social workers and law enforcement.

Law changes

§ Statutes are not the problem; it’s the lack of interest if there is no police involvement.

Prosecution issues

§ Ensure that professionals interview the children.

§ Lawyers need to take the time to fully investigate the facts and advocate for the best interests of children.

Prevention

§ Parenting education in schools.

Prosecutors

The top recommendations among the prosecutors interviewed include (see Table 21)

Resources

§ More manpower to be able to reduce caseloads and work more closely with CPS.

§ It needs to be easier to get CPS reports and information.

§ Need more prosecutors to handle caseload and further investigations that police don’t.

Policy

§ Start with CPS, our biggest concern; again change the focus from unification to protection of the child.

§ Caseworker should have the discretion that a child is in imminent danger to make a decision with some degree of amnesty.

§ Parents should not be allowed to refuse services.

Law changes

§ Mandatory reporting law; needs to be less “wiggle room.”

§ Declare pre-natal and perinatal drug abuse to be child abuse.

§ Amend Rules of Evidence to allow introduction of prior conduct.

Prosecution issues

§ What needs to change is the attitude of our jury panel so they understand children are not the property of their parents.

Prevention

§ More efforts toward prevention, public education.

Police

The top recommendations among the police interviewed include (see Table 22):

Resources

§ Need more manpower/overtime to work the cases on a timely basis, limit caseloads.

§ CPS needs to have more funding and higher pay so they would get more competent caseworkers.

§ Not enough placement options or treatment when you do have to place children.

Policy

§ Better training for patrol; more accountability within department on protocol.

§ Detectives should be able to go out on every case, so that the case can be done properly the first time.

§ Should have a protocol as a state standard, you could have more agencies working together and on the state level we could all be mandated to handle cases in a certain way.

§ Policies are there; the problem is that they are not always enforced. We aren’t able to follow protocol.

§ Child Protective Services should get rid of their 21-day time line to investigate a case and follow lead of the detectives. The detective should be the first to interview the parent.

Law changes

§ Neglect laws need to be clarified and strengthened (too vague).

§ Need legislation for implementation and coordination of protocols, timelines between CPS and PD.

§ Another law that needs to be tougher is our stand on substance-exposed babies.

§ Have graduated laws that show the difference between a 16 year old and a 40 year old, etc.

§ The legislation should change the primary goal of CPS to child protection and not have them focus on the case plan of reunification; rather the case plan should be protection of the child.

Prosecution issues

§ All in all, the laws are pretty tough; we just need to follow them, use common sense, and prosecute more cases.

§ The county attorney’s office has to take more cases and have a consistent policy when reviewing cases within the office.

§ False reporting needs to have more serious consequences and be prosecuted.

Prevention

More has to be done in the area of prevention, educate the public, media, and kids about the definition and scope of child abuse, public information campaign.

CPS Workers

The top recommendations among CPS workers interviewed include (see Tables 23 and 25):

Resources

§ The state must provide adequate human resources to do the job CPS is called upon to do.

§ Community needs better resources for marginal families. Tap resources to parents who have parenting skills and people who are available to care for kids

§ Group homes should be model facilities as an ideal alternative, bring back good orphanages.

Policy

§ If a mom delivers a substance-exposed baby then she should be mandated to stay in a treatment program.

§ Value Options must be held accountable for providing timely, quality mental health services

§ The agency must find a better way to serve the needs of families and children and to better protect children.

Law changes

§ Neglect needs to be more clearly defined, families held accountable.

§ The child should be the biggest priority, not adults.

§ Substance exposed newborns should be specifically addressed by the law.

§ Define “imminent danger” more clearly.

§ Tougher penalties for the crimes committed, laws stricter on child molesters.

§ Remove CPS from DES.

Prosecution issues

§ Better prosecution of abuse cases by county. 100% investigation.

Prevention

§ There is just need for more education, making sure that services are available for these families and being able to educate the client in all the resources and increase community involvement.

Community Service Providers

The top recommendations among community service providers interviewed include (see Tables 24 and 25):

Resources

§ The first thing – CPS needs more money. The case managers have so many cases, they are extremely short staffed.

§ Improve competency, training, and retention of CPS workers.

§ Foster parents need to be increased and improved upon with positive incentives and expectations.

§ Improve mental health services. Adequate mental health and therapeutic group homes must be developed.

Policy

§ Whether law or policy, CPS should be empowered with clear guidelines for removing a child from a home, should be able to intervene based on a preponderance of facts/evidence.

§ Improve collaboration in the system. Involve professionals in the cases as part of routine staffing and make sure their concerns are incorporated in the case plan.

§ Change mechanism for children to get medical and other resources needed in a timely manner.

§ Create a team approach to case planning to prevent arbitrary decision-making by CPS, mandated multidisciplinary teams, more extended monitoring and supervision of cases.

Law changes

§ Neglect and chronic neglect should be clarified and spelled out (presumption of neglect and abuse).

§ Move beyond reunification for severance or another avenue to keep children safe, balance between parent’s rights and children’s rights need’s to be reprioritized.

§ Amend the child abuse laws to include substance exposed newborns.

§ More to be done to mandate services and to be able to act on it when a parent doesn’t follow through, to help the child.

§ Parents should be held accountable and/or prosecuted for abuse or neglect, harsher laws.

§ More should be done in situations where a professional fails to report abuse when they are aware something is going on.

§ Create clearer roles at CPS and for community providers. There has to be accountability, none as it stands now. There is no accountability for the judges, no accountability for CPS.

§ Pull CPS out of DES

Prosecution issues

§ The court lacks education regarding substance & emotional abuse and what works with these families and what doesn’t work. All parties in the system need to be educated on what works.

§ There is not enough information sharing and collaboration among CPS and other agencies and this can hinder how CPS manages a case and the outcome of a case.

§ Law enforcement and CPS need to improve how they communicate with one another. Maybe PD can have access to the central registry and CPS can have access some police information. They do not always cross-refer. It would be nice to see CPS and officers go out together on these calls.

Prevention

§ Funding, health care, spending more on prevention: teen pregnancy, day care, parenting, substance abuse, and mental health information.

Physicians and Medical Social Workers

The top recommendations among physicians and medical social workers interviewed include (see Table 26):

Resources

§ Improve the quality and skill level of CPS workers.

§ Staff hospitals with CPS workers who understand medical terminology and can be the point people for the medical team and CPS system.

§ There must be an improvement in resources for safe and adequate discharge planning of medically at risk kids. CPS must be reorganized, restructured, re-staffed and adequately staffed.

§ Need better education of everyone involved in system. Need cross-training and better understanding of the role everyone in the system.

Policy

§ Better communication between the agencies and a real collaborative effort between the systems that would be more of a multi-disciplinary approach.

Law changes

§ Better laws to protect children not parents; make family preservation second and child safety first.

§ Confidentiality laws must be reviewed. Physicians & hospitals must have access to information to treat children medically and adequately.

§ There must be clarification of custody/ guardianship statues when abused children are hospitalized. Legal status must be guaranteed to provide medical caregivers the ability to treat and guarantee the child’s protection and safety.

§ Improve neglect laws.

§ Harsher child abuse laws

§ Criminalize substance-exposed abuse and give parent ability to plea with services mandated by the court.

Prosecution issues

§ Better investigations including the use of medical documentation of opinions.

§ With respect to law enforcement, CPS and our work, we should compliment each other and we could make their job easier and they could make our job easier through collaboration.

Prevention

§ We need to focus on risk factors and prevention. Teaching kids life skills is helpful too. More ads in media about positive parenting, positive conflict resolution.

Foster Parents

The top recommendations among foster parents interviewed include (see Table 27):

Resources

§ Improve mental health services.

§ Foster parents need more respite time each year.

§ Some children need a special advocate for educational purposes (not just a surrogate parent).

Policy

§ Improve screening of new parents. Perhaps have seasoned foster parents be mentors for newcomers.

§ Better communication with G.A.L. and child’s attorney.

Law changes

§ Establish appropriate laws and funds to effectively accomplish protection of children, and then employ necessary personnel.

§ Laws need to provide immediate removal when neglect or abuse is substantiated and drug use is present.

Prosecution issues

§ Better investigations, quicker removals.

Prevention

§ Change the mental health system to be more “proactive.” Services need to be provided to people/kids before they are in the “system.”

§ Provide more parenting classes and information and make it mandatory.

§ Everybody involved in system take responsibility to do their job.

Guardians Ad Litem

The top recommendations among Guardians Ad Litem interviewed include (see Table 27):

Resources

§ More case workers are needed and more money for services.

Policy

§ Home should not be preserved at all costs, we wait too long to file dependency.

§ Get all departments together and interacting.

Law changes

§ No laws to be changed need policy changes.

§ Make the parent more accountable for their actions.

Prosecution issues

§ More aggressive approach by the system, to make parents more accountable for their actions, be it jail or a fine, require more than minimal parenting skills of parents.

§ Courts need more authority to order services.

Prevention

§ Parents must only possess minimal skills – they are way too low.

In Harm’s Way

TABLE 1

Central Purpose of the Child Welfare System

Judges

Prosecutors

Police

CPS Workers

§ The safety and health of the children. *

§ The paramount concern should be the safety of the children.

§ To seek justice.

§ To protect those who can’t protect themselves. There are different goals for each system.*

Protection/Safety

§ To protect and preserve the safety of children.*

§ To protect children whether it is through an immediate arrest and to thoroughly investigate allegations of abuse.*

§ The protection of victim.*

§ To protect children. It is a three fold thing: 1.The whole system is supposed to protect the child particularly the child that doesn’t have protection at home. 2. To identify and prosecute the offender or those that commit crimes against children. 3. Find a way to get abused kids back on track to lead a normal and healthy life.

§ All systems, as a whole, would be sharing a common goal which is to protect the child whose rights have been violated and to help that child.

Provide Services/Reduce Trauma

§ To reduce further trauma and to empower the victim. To hold the perpetrator accountable and also to prevent further abuse.*

§ To stop child abuse. To provide services to the family and to aide in the prevention of abuse.

§ Assess victim’s needs and tend to them.

Successful Prosecution

§ To prosecute offenders.*

§ To assist in the prosecution of cases we think we can win.

§ To prosecute those offenders who have committed a crime as far as the system goes: to have an investigation prepared to the fullest extent and assess what ever needs the victim has and tend to those needs. It is the same thing for CPS.

Protection/Safety

§ To ensure the safety of children.*

§ To protect kids and ensure that children have a safe and healthy environment to grow in.*

§ To protect children from physical, emotional and psychological harm.

§ I also feel that every one is responsible for these kids and their safety.

§ The parents are ultimately responsible for safety of their children.

§ The goal is probably to protect the children.

§ The main goal should be to keep the child and family safe and to provide services to help with some of the abuse in the family.

§ To provide crisis intervention. To keep the children from being in danger of imminent harm and safe from the immediate danger. It is a very narrow focus, as we are the responders of last resort. However, this is muddy because of different factions in how the county and agencies see us, which is in very different roles and it leads to role confusion.

Provide Services/Reduce Trauma

§ To prevent generations of CPS families; stop the pattern.

§ In social services, it is to provide services to the families.

Keep Families Together

§ In my agency, the goal is to provide services to families and try to preserve families and if that is not possible, to try to reunify families or move children to permancy.*

§ We are a family centered practice.*

§ In our case plan, our first goal is to preserve families and to set up a plan to reduce the risk factors in order to reunify the family.*

§ We make sure that each case is dealt with expediently and in a proper manner and that each family has the opportunity to follow a case plan.

In Harm’s Way

TABLE 1 Continued…

Central Purpose of the Child Welfare System

Foster Parents

Community Service Providers

Physicians & Medical Social Workers

Guardians Ad Litem

Protection/Safety

§ To protect a child from abuse and to provide a supportive, safe and loving environment for them to grow up in.*

Provide Services/Reduce Trauma

§ To advocate for services.

§ To help a child recover from trauma.

§ To prepare them for their next placement.

§ To give encouragement and provide a child with a sense of family.

§ To prepare a child to become a productive member of society.

§ To provide education for the child.

§ The whole system is so disjointed right now that you can’t look at it as one system because it doesn’t work as one system.

§ To process cases with as much efficiency as possible.

Protection/Safety

§ To protect children.*

§ To assure a child’s safety and give the child an opportunity to become a self-reliant and productive citizen. *

§ To ensure a safe and nurturing home for every child. To prevent further abuse and to promote the development of healthy children.

§ First and foremost, I think it is to protect children.

§ To protect kids and to try to make the best out of each situation.

§ To assure the safety of children. To find out and then advocate for what’s in the child’s best interest.*

§ Ultimately, all of us want that child to be in a safe and permanent home, whether it is law enforcement, CPS, the courts, etc. We would all be working toward the same goal.

§ To make children safe. To remove them and put them in a safe place. I think all of the systems try to work with each other.

§ It is the system’s responsibility to protect children and to provide services that are in the child’s best interest and not do what is always the easiest or take the easy way out.

§ The system provides a check and balance for everyone to be dealt with fairly.

§ To determine if abuse has occurred.

§ With all systems: it is to keep the child safe and to help the child find a stable environment.

Provide Services/Rehabilitate

§ To assure a balance between parental rights and the rights of a child in order for the child to be safe at home. *

§ To provide parents and children with necessary resources. To prevent against future abuse and neglect.

§ To provide treatment and legal representation to parents and kids.

§ To try to help families, educate them, and help them learn the skills they need.

§ I think that trying to get the services through Value Options is a problem. Trying to get CPS and behavioral health to work together is a problem.

§ To rehabilitate offenders.

Best Interest of Children

§ People need to be more aware and focused on what each other’s missions are and they all need to focus on the best interest of the child.

§ I think that CPS’ sole purpose should be to look at what is in the best interest of that child while that child is still young enough to have a future.

Protection/Safety

§ To ensure child safety and to find a nurturing home for every child.

§ It is to ensure child protection within the context of the family.

§ Child protection and family reunification.*

Prevention

§ In reality, the current system seems to react in a manner that has the least impact on scarce resources.

§ The prevention of further abuse. To promote the development of healthy children.

§ The primary goal of the CPS worker should be to be proactive. We should be asking, “What are the risk factors?” Let’s put our money there because it is so much more cost effective than to try to fix the broken families.

§ To get out of as many cases as they can without meeting the needs of the children.

§ 1. Protect Children 2. Reunify Families. 3. Find permanent placement.

§ The stated purpose is to protect children – We don’t do it very well, we are ineffective.

§ Family Reunification

§ It is supposed to be to protect best interest of the child.

In Harm’s Way

TABLE 1A

Should be Central Purpose of the Child Welfare System

Judges

Prosecutors

Police

Foster Parents

Community Service Providers

Physicians & Medical Social Workers

Guardians Ad Litem

§ The safety and health of the children.*

§ The paramount concern should be the safety of the children.

§ To seek justice.

§ To ensure the safety of the children.*

§ The primary goal should be the protection of kids. CPS is concerned about protection but the emphasis on family unification. It isn’t always the best way to go about it.

§ The presumption of family unification isn’t the best presumption. It should be the presumption of child protection.

§ First, the goal should be to protect the child. To make sure that we provide services to the victims i.e. medical and counseling. To provide the victim with resources to ensure their safety and to prevent the abuse from happening to them again.*

§ CPS seems confused on their purpose. As it stands now, CPS has a bigger interest in reunifying families.*

§ We focus too much on getting the suspect put away but I think of the children and what is going to happen to them.*

§ It is really hard to get these kids counseling and force them to go back and live in their same environment. Maybe getting them out of their environment and placed into a safer one would really help these kids.

§ To get a criminal case through the system from the beginning to end. It is all about making sure the kids are taken care of.

§ To take a stronger stand and to stop having lame plea agreements. They need to be sterner and offer the toughest pleas.

§ If you don’t have the person indicted in a reasonable amount of time they can be released.

§ The goal is not being met with other agencies such as CPS because they don’t have the resources to meet their goal. Some agencies don’t have the manpower to meet their goals.

§ Everyone should be striving to achieve the same goal.

§ To protect children and provide them with a good education.*

§ To focus on the best interest of the child.

§ 1. To rescue children who are in a crisis. 2. To reunify families. 3. To find permanent homes for abused kids.

§ Minimize the time for the removal of children. It should be after the first substantiated allegation of abuse. Then, provide them with an out of home placement to nurture them, aid in repairing them emotionally, and help them to prepare for their future.

§ To protect children and provide them with a safe home to grow up in.

§ The protection of children and what is in the child’s best interest.*

§ To ensure the safety of the child. *

§ To reprioritize child safety over the rights of parents.*

§ For some people, the goal is to protect parent’s rights but that should never be the goal.

§ The primary goal should be to find a strong and stable home with which the child can live and grow up in. It should be a healthy and strong stable home.

§ CPS should be able to place these children sooner and not give parents chance upon chance to get the child back, especially when they have not done anything to comply with the case plan.*

§ CPS needs to look at all aspects of abuse (physical, sexual, emotional abuse, and neglect) which can all be just as damaging to the child. To protect children exposed to drugs and alcohol. According to CPS, substance abuse is a lifestyle choice. Drug use is not considered abuse or neglect.

§ To keep children safe. Abusers who abuse children get less prison time than abusers do, who abuse animals. We need changes in the system.

§ To provide better resources to ensure child safety. We need better services for prevention & intervention.*

§ To protect the child and to have some kind of punishment inflicted on the offender; in a larger sense, to protect of the community from the offender.

§ The definition of the minimal parenting standard must be changed and enforced. We need a higher standard, in its current standing, it is less than minimal.*

§ To either reunite a child with a natural family or put the child up for adoption.

§ There must be better communication and collaboration among the agencies to ensure a child’s safety.*

§ Right now a parent can refuse to talk with you, so how can that constitute an investigation?

§ To truly investigate allegations of child abuse.

§ To make sure that the time that someone is put away is commensurate with the crime.

§ To go beyond protecting the child and serve the family.

§ Ideally, it is to provide services for the protection of children and individuals, to help keep them safe and to help them overcome barriers in their lives, so that they can become productive citizens.

§ To protect children and to support families. The paramount goal needs to be: to assure children are safe and that they have an opportunity to be self reliant productive citizens in the future.

§ To protect children at all costs. Family preservation should come second to that. *

§ To ensure the safety and the well being of children.*

§ To create a better balance: children’s rights first, then parent’s rights. The welfare and safety of the child should be the number one priority.*

§ Better the collaborative efforts between all of the agencies to ensure child safety.*

§ To provide necessary and appropriate resources to ensure child safety. Child safety should be evaluated on a case by case basis.*

§ To remove the barriers. We shouldn’t have to wait for approval from CPS to give care to a child and provide forensic medical care. AHIT never calls us and even when we call them for approval to conduct a forensic exam on a child, they say no.*

§ A multidisciplinary team approach to protect the child. A better quality assessment tool for targeting at risk families.*

§ Family preservation and kinship care should have better defined policies to deliver quality intervention. There goals should be specifically targeted to address the issues that can be realistically resolved in order to produce better outcomes and improve child safety.*

§ To be child advocate.

§ We need to preserve some families; but we also need to put a child into a nurturing home and sometimes it is not with the family. The child’s needs should be the focus.

§ Remove children from unsafe situation and don’t return them until it is safe be sure they are placed in a safe foster home

§ Provide services for the family to keep them together in healthy environment.

§ Place child in a safe loving home.

In Harm’s Way

TABLE 2

Organization’s Current Mission or Purpose

Judges

Police

CPS Workers

§ Abuse and neglect are considered in deciding custody and parenting time. The family court may ask CPS to investigate if there are allegations or evidence of abuse or neglect.

§ Child abuse and neglect are prosecuted as crimes in criminal court.

§ A person who is charged with abuse or neglect comes before the judge to resolve the charges.

§ To investigate child abuse and sex crimes. To investigate allegations of abuse or incidents of abuse. To aid in the prosecution of crimes committed against children. *

§ The protection of children and to be able to do something for these kids when they come forward and disclose the abuse. To be able to prepare for a successful prosecution and limit the future trauma to the victim. *

§ To provide an interdisciplinary approach in the investigation of child abuse or neglect.

§ To reduce further trauma to victim and to have a successful prosecution.

§ We have to be able to respond in an appropriate time frame because the longer you wait the less success you have in prosecuting the case and having the case followed up correctly.

§ To ensure the safety of children. *

§ To strive for permanency: we try to provide services to families to keep the child’s permanency in the family if at all possible. *

§ Reunification/relative placement *

§ Overall, ensuring the well being of the children in our care is our goal; I’d say we accomplish it about 50% of the time. *

§ CPS strives to achieve all three goals: safety, permancy and well being.

§ To investigate allegations of abuse and to ensure the safety of child

§ We strive to move children out of the system.

§ Severance/adoption is the last resort in child protection.

§ Placing children for adoption and striving for permanency is our goal.

§ We can only provide for the needs of children if our contractual homes and service providers do their jobs well and provide these children with quality care.

§ In central intake, we are very organized and the quality of our interaction is impressive and essential.

§ I do believe that we strive for the goals of safety. In investigations, we assess the child’s safety and we have 100% response rate.

§ We look for safety in foster care placement and in the biological home and when the child is to return home we continue to assess safety once the child is in the home until the case is dismissed in court.

§ We use reunification services and family preservation programs. We assist families in connecting with community services if we are not going to keep the case open or make the child a ward of the court.

§ The job of CPS is to go out and assess the family environment and make sure the children are safe. We establish permancy as soon as we can. It was quite possible for a child to live in their home without a disturbance, after we made an effort to reunify the family. For the goal of child well being, we strive for family reunification; we try our best to make sure that children go back to live with their family.

§ Our job: within a year, we determine if we should go for family reunification or severance based on the parents’ response to our case plan. The plan includes the therapeutic recommendation. We try to find foster homes and adoptive homes for the children in case we do go for severance. In most cases we try to find a family member or guardians to keep the children in the family.

§ By responding when we hear a kid may be at risk, we have pretty good system in place when we know we need to call people to go out if the kid is in danger.

§ By moving the case along as quickly as possible, we try to provide services for the parents so they can get their kids back.

In Harm’s Way

TABLE 2 Continued…

Organization’s Current Mission or Purpose

Community Service Providers

Physicians & Medical Social Workers

Guardians Ad Litem

§ We advocate for the victim’s rights. *

§ We work on building and strengthening families for children *

§ Child Help USA is dedicated to the prevention and to the treatment of abused children.*

§ EMPACT Mission: To build strong families and communities by helping AZ youth and adults cope effectively with the challenges of life. This is achieved through compassionate and innovative prevention, counseling, crisis, and training services.

§ East Valley Child Crisis Center: We believe in focusing on little kids, giving shelter and on strengthening families and community education, awareness, and prevention.

§ We serve all victims of sexual abuse, physical abuse and neglect and not only do we serve victims but their families as well. Part of what we try to do is not just to provide the services to these families, but also, to provide solutions and prevention resources.*

§ Basically to empower battered women and their families and to prevent and stop domestic violence.

§ To provide support for DES and to provide stability for the family

§ CASA: It all comes back to the same thing it is what is in the child’s best interest: protect the child and keep the child safe. To give the child as many opportunities as possible to help make sure that the child can lead a healthy and productive life. To keep the child safe.*

§ To recruit and train community volunteers to advocate for the best interest of the children who are wards of the court. We work with kids that have been abused and neglected.

§ Local School: Promoting self-proficiency. Our job is to help them to become better. To help families get off of the welfare system.

§ JFCS: Strengthens the community by helping people find solutions to different life circumstances. To help families in a variety of ways.

§ The mission of West Valley Child Crisis Center is to provide temporary shelter and supervision for children who are victims of, or at risk of, abuse, neglect or abandonment, in a safe, nurturing, home-like environment staffed by quality care providers and to interact with the community to increase awareness of, and work to prevent, the cycle of child abuse.

§ To give the best possible care to children. To provide hope, healing and the best possible care to children and families.*

§ End the cycle of domestic violence by providing a variety of resources and education.*

§ To be a part of the support system made available to victims.

§ We provide foster case management.*

§ We are a direct Service/residential care provider to juveniles who have fallen through the cracks.

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