Homeless in Arizona

f*ck the 4th Amendment I don't need no stinking warrant to seize your kids, I'm a case worker at CPS or DCS. I'm God and I'm above the law.

4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and SEIZURES, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the PERSONS or things to be seized.

http://www.azcentral.com/story/news/local/arizona-investigations/2017/02/12/arizona-department-of-child-safety-court-orders-removing-children/97660266/

Soon judges, not Arizona Department of Child Safety alone, could decide when to take children from families

Bob Ortega and Mary Jo Pitzl , The Republic | azcentral.com 6:01 a.m. MT Feb. 12, 2017

While lawmakers debate whether to require the state's child safety agency to get a warrant before removing a child, the DCS director said he'll start doing that anyway.

The Department of Child Safety does not need a warrant to remove a child; some states require it The agency's director said he will pursue getting a court order before removing a child

In a move that could slash the large number of children separated from their parents in Arizona, the state's Department of Child Safety is developing a plan that would force caseworkers to seek a judge's order before removing children in most cases.

The shift would be a departure from current policy, in which caseworkers and their supervisors decide on their own whether to remove a child — often with police assistance — with days passing before the decision is reviewed by a court.

The policy, while potentially more stringent in requiring workers to make their case to a judge, would make exceptions, mostly for children considered to be in immediate danger.

“If time permits the relaying of facts to, and the consideration of a judge, a court order will be sought prior to taking temporary custody of a child,” states a recent memo from DCS Director Greg McKay to all DCS staff.

But the shift also could keep the agency's practices ahead of other efforts that would force it to make such a change.

At least two scenarios are possible:

Legislators, some long concerned that DCS removes too many children, have been weighing bills that would engrave the process of requiring court orders into state law, rather than department policy. Indeed, McKay issued his memo the day after a leading lawmaker convened a meeting at the Capitol to discuss such a move. At least one bill already has been introduced in the current session. In response to lawsuits, courts have forced child-welfare agencies in other states to seek a warrant from a judge in most cases before removing a child. A similar ruling in Arizona could be backed by federal appeals court rulings that have upheld those cases. And a case currently working its way through federal court in Arizona seeks to do just that.

About this report

This story is part of an ongoing investigation of child-welfare issues in Arizona. In 2016, when the number of children removed from their families peaked at over 18,000, the Arizona Community Foundation gave The Arizona Republic and azcentral.com a three-year grant to support in-depth research on the topic. As part of that effort, reporter Bob Ortega and our other experts investigate the reasons behind the surge in foster children and the systems meant to support and protect them. Through our reporting and editorial pages, we seek solutions to those problems.

Meet the experts behind our reporting: Arizona child welfare: There are some issues we just won’t let go

Whatever the method, requiring proof of enough immediate danger to merit a warrant or similar judicial order could significantly reduce the rate at which children are separated from their families.

That's what has happened in many of the other locations that have adopted similar procedures, which include Utah, New York, Illinois and a handful of counties in California, among others. In general, those locations have been able to remove fewer children while still keeping them as safe as before, based on federal data.

It isn’t clear yet how soon the new policy will take effect. DCS is discussing that question with Gov. Doug Ducey's office, lawmakers and the juvenile court system administrators in all 15 Arizona counties, since the change presumably would require at least one judge to be available at all hours in each county to handle requests for removal orders.

Legislative pressure

Rep. John Allen, the House majority leader, said while he supports requiring court orders, he believes that change requires legislation. If DCS can make this happen without a law, Allen said, all the better. But he questions whether the agency has the authority to do that on its own.

Some lawmakers, Allen among them, have been wary that DCS removes too many children from their families' homes. A warrant would make the reasons for removal clearer and more transparent, they say.

"I think it would bring in another set of eyes," said Allen, a Republican from Scottsdale. In cases where there is not an emergency, going before a judge and stating the reasons for removal might reduce the emotional element in such decisions, he said.

Allen had started work on a bill requiring a judge's warrant for most removals, including a Feb. 2 meeting that involved DCS, the courts and legislative staff. The next day, McKay issued his memo. But Allen told The Republic there were too many issues to iron out before Friday's deadline for filing legislation this year.

Late Wednesday, though, Rep. Kelly Townsend, R-Mesa, introduced her own bill to require warrants.

House Bill 2507 states that in "exigent" circumstances, a warrant would not be needed. Townsend defines those circumstances as ones in which a reasonable person "would believe that a child is in danger of suffering severe bodily harm or death in the time it would take to obtain a warrant."

The bill has been assigned to the House Health Committee. Chairwoman Heather Carter said she will not bring it up for discussion. Her move, which she did not explain, would effectively kill the bill, as Feb. 17 is the deadline for bills to get their initial hearing.

Ducey's office said it is involved in a careful study of making such a policy move, but suggested more work needs to be done before anything is changed.

A vast impact on cases

Arizona took away 13,132 children for the fiscal year that ended in June. In recent years, 80 percent to 85 percent of children taken from parents have been removed for neglect, a broad category that can include parental drug use, lack of food, or many other issues.

While data on these kinds of neglect remains largely impossible to analyze in Arizona, neglect cases don’t necessarily pose an immediate threat of physical harm or death to a child.

Requiring a judge to sign off on most removals, part of broader reforms underway at the department, potentially could affect the vast majority of such cases.

“Removing a child from a parent, even for a short period of time, can inflict lasting harm. ... This knowledge imposes a responsibility on the child welfare system to remove children only when absolutely necessary.”

Professors Vivek Sankaran and Christopher Church

Currently, Arizona can take away a child for several days before a juvenile court judge reviews the case to determine whether or not the removal was justified, what help the family might need, and where the child should be placed in the short term. Legally, DCS has 72 hours after taking a child to file a petition with a juvenile court. Then up to seven days can pass before an initial court hearing. Those deadlines aren't always met.

Requiring a judge's order before taking a child — rather than a review three days after the fact — could reduce instances in which children are removed and then returned within a few days.

That’s important because being ripped from home, even just for a few days, can be a shattering event for children, child-welfare experts say.

Children can “become overwhelmed with feelings of confusion, fear, and stress,” wrote Monique Mitchell, an assistant professor at the University of South Carolina’s Center for Child and Family Studies, in her 2016 book, “The Neglected Transition.”

"Removing a child from a parent, even for a short period of time, can inflict lasting harm," wrote law Professors Vivek Sankaran and Christopher Church in a recent article for the University of Pennsylvania Journal of Law and Social Change. "This knowledge imposes a responsibility on the child welfare system to remove children only when absolutely necessary."

In a prepared statement, DCS said that adding another layer of court oversight "provides DCS frontline employees with additional protection while they make crucial decisions regarding child safety, ... safeguards parental rights," and "protects children from trauma caused if a removal is unnecessary."

Being forced by the court

Repeated federal court rulings back the idea of seeking a court order first, including one last December by the 9th U.S. Circuit Court of Appeals that found the County of Washoe, Nevada, should have sought a warrant before removing a 2-day-old infant born five weeks prematurely to a meth-using mother.

The key 9th Circuit Court decision came from a 2001 neglect case in Stockton, Calif.

On Aug. 31 of that year, a county child-welfare worker took Shelby Rogers, 3, and Tommy Rogers, 5, from their parents, after finding the home in disrepair and the children in diapers, with Tommy missing several teeth and others decayed in a severe case of "bottle rot," infant tooth decay. The caseworker, Charlotta Royal, also reported that the children seemed unkempt, thin and pale, among other concerns.

“Where there’s time to go before a judge, the judge makes the decision. The government agent or officer has to have specific, articulable evidence to show the child will suffer immediate bodily harm or death in the time it would take to get a warrant.”

Shawn McMillan, attorney

She removed them immediately, with the help of a police officer. Two weeks later, after Tommy got dental care and the parents took other steps to address issues, the children were returned to them. The Rogerses sued, saying Royal should have sought a court order beforehand.

In a 2007 ruling, a three-judge 9th Circuit panel agreed. Even though the children were neglected and in a sorry state, wrote Judge Stephen Reinhardt, the conditions didn’t “present an imminent risk of serious bodily harm.”

“It would have taken Royal only a few hours to obtain a warrant. In removing the Rogers children from their home without obtaining judicial authorization, Royal violated the Rogers’s clearly established Fourth and Fourteenth Amendment rights.”

While that ruling led San Joaquin County to start requiring warrants, other California counties and other states covered by 9th Circuit Court decisions, which includes Arizona, mostly have only made changes when they, too, have been sued — even though the standard under federal law is clear, said Shawn McMillan, an attorney in San Diego.

“Where there’s time to go before a judge, the judge makes the decision. The government agent or officer has to have specific, articulable evidence to show the child will suffer immediate bodily harm or death in the time it would take to get a warrant,” said McMillan.

In recent years, McMillan has won millions of dollars from an array of California counties for "warrantless removals," as they are called. He has also won federal injunctions requiring counties to get court orders for all non-emergency cases in which a child is taken away from his or her parents.

After those injunctions, many counties saw the number of children taken away from parents fall sharply. Even as removals stayed flat in California statewide, they fell 26 percent in Orange County, 25 percent in Riverside County and 22 percent in San Joaquin County in the one or two years after each began requiring court orders for non-emergency removals, according to data from California’s Department of Social Services.

The case that could affect Arizona

McMillan is now representing an Arizona family in a federal suit filed in 2014 against Arizona over the warrantless removal of their children. The suit, Pellerin vs. Wagner, seeks damages and an injunction requiring DCS caseworkers to seek court orders before removing children.

Devin and Angie Pellerin were living in Buckeye when their two children, then 4 and 8 years old, were taken away by the then-Department of Economic Security’s Child Protective Services division on May 10, 2013.

Why they were taken away remains in dispute.

At the time, Devin Pellerin was a senior airman at Luke Air Force Base. He and his family had just bought a house nearby in Buckeye, moving there from a prior posting at a U.S. Air Force base in Japan. According to the Pellerins' complaint, a neighbor in Japan with whom they had a dispute had falsely accused them of child abuse. The Air Force investigation was still open when the military moved the Pellerins to Arizona.

A few weeks later, a CPS caseworker, Caryn Wagner, questioned the couple’s oldest child at her school and, later that day, went to the Pellerins' home accompanied by a Buckeye police officer.

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Read more about the program here or to order your specialty plate, go to servicearizona.com. According to the complaint, Wagner became visibly upset when Angie Pellerin made her wait as the family ate dinner and Devin Pellerin came home from work. The suit charges that Wagner seized the children vindictively, falsely accusing the couple of punishing the children by making them do push-ups.

Initially, the children were placed with Devin Pellerins' father and his partner. The suit charges that Wagner vindictively removed them again 11 days later, putting them in foster care after Ken Pellerin, Devin’s father, emailed her saying that the younger child didn’t even know what a push-up was. The suit also said that, in a petition to the juvenile court, Wagner accused the Pellerins of hitting the children, even though the police officer who accompanied her examined both children and found no injuries or marks on them, and the children denied being hit.

A month later, a juvenile court judge ordered CPS to return the children to the Pellerins. That very night, according to the suit, Wagner and another CPS employee took the children away again. It took the Pellerins four more months to get their children back and have the case against them dismissed.

The state has denied the allegations in the suit.

In a videotaped deposition in the case last March, Wagner said she didn’t recall ever obtaining a warrant before taking custody of a child.

“I’m not aware of any time any caseworker has got a warrant to remove a child,” she said.

Tom Brown, the grandfather’s partner, said the children still show the effects of being taken from home for more than five months.

The younger child, a boy, refused to sleep in his own room anymore.

“He kept saying there were monsters in there,” said Brown. His older sister “stresses out a lot even now. There’s a lot of resentment,” he said.

A trial date has not yet been set in the case.

How to implement the change

As DCS discusses with juvenile court officials how to handle the logistics of seeking court orders, some court administrators have expressed concerns, noting the additional cost and effort of having judges on call to review orders 24 hours a day.

“They made the same argument in New York,” said Carolyn Kubitschek, a child-welfare attorney in New York City and vice president of the National Coalition for Child Protection Reform. She represented the parents in a 1999 federal court case that led the city and the state of New York to start requiring court orders to remove children from their homes.

“At oral argument, the judges said to the lawyer for the city, ‘Look, if you remove a child, you have to go to court afterwards, so you have to go to court anyhow. What is the problem with going to court first?’

And the lawyer said, “ 'If we have to ask a judge, they might say no.’ ”

New York City took away less than a third as many children last year as it did in 1998 — as a result of numerous changes that go well beyond the court-order requirement. Per capita, it removed one-fourth as many children as Arizona did in fiscal 2016.

Utah offers an additional tier of protection. Not only do caseworkers need court orders to remove children in most cases, but state law requires that the parents be given a chance to be heard by a judge before removals, unless it’s likely the child would suffer substantial harm in the meantime.

“I'd want to have a comfort level that (obtaining a warrant first) doesn't leave a child in a dangerous situation.” Senate President Steve Yarbrough Allen, McKay and state Sen. David Bradley, D-Tucson, traveled to Utah last year to learn more about Utah's warrant system. Bradley, whose background is in social services, said he's ambivalent about a warrant requirement and said DCS should move slowly.

"I would caution him to not do it," Bradley said of McKay's intentions. At least, he said, the department shouldn't rush into a new policy on removing children until lawmakers have time to process what that means.

Senate President Steve Yarbrough, R-Chandler, expressed a similar hesitance.

"I'd want to have a comfort level that it doesn't leave a child in a dangerous situation," said Yarbrough, who practiced family law when he worked as an attorney.

Juvenile Court officials in Maricopa County declined to comment on the plan, saying they needed to see details before determining any costs or how a warrant process would work.

In his memo to DCS workers, McKay said that caseworkers would not need a judge's authorization for cases "involving present danger ... (or) the state's need to interview or medically evaluate the condition of an alleged victim for a brief, prescriptive time period."

He also seemed to note that making the change wouldn't just reduce the risk to children.

The memo said that the new process is "a way to protect DCS staff while making critical decisions using a consensus-based approach with judicial support. That is a benefit to DCS staff, parents and children."