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Taking on CPS and the Juvenile Court Judges
In 1992 I spearheaded a bill through the Arizona Legislature over the formal, stated opposition of the state’s Juvenile Judges Association and Child Protective Services. I gathered allies and kept pushing on the goal.
Private Dependency Petitions
In 1991 I had practiced law in the Maricopa County Juvenile Court (the Phoenix area) for almost ten years doing Child Protective Services cases. In the ordinary course of events, Child Protective Services removes children and then files a “dependency” petition, whereupon the Court grants temporary orders and a series of hearings result.
However, Child Protective Services would file a dependency petition only if there was clear evidence that the child was in imminent risk of abuse, often referred to in slang as “blood or bruises.” However, the legal standard of a dependent child is a child in need of proper and effective care and control, and the lack of a parent or legal guardian able or willing to provide such proper and effective care and control.
If the parents are addicted to drinking or drugging, and the child is with grandparents, then the child is not in imminent risk of abuse, so Child Protective Services would not investigate, let alone file a dependency petition. (If the parent showed up with the police, Child Protective Services would often claim that there was no recent evidence of abuse and refuse to get involved.) However, if the parents are addicted to drinking or drugging, then they are unable to provide proper care and control of children. Hence the emergence of a “Private Dependency Petition.”
I would meet with Grandparents who are caring for their grandchildren. The parents would stop by occasionally to extort money from their own parents and would threaten to take the children if not given money for alcohol or drugs.
I would prepare a private dependency petition and would allege that the parents were drinking and drugging and would ask that the children be placed in the Temporary Legal Custody of Child Protective Services and the Temporary Physical Custody of the grandparents. Since the children met the definition of a “dependent child” the Court signed the temporary orders. I would then contact Child Protective Services which would grumble that they already had too many cases. However, if Child Protective Services liked it or not, they were being forced to do what I believe was their job. I would always ask that the children have their own court-appointed attorney which was always granted.
This drove Child Protective Services crazy. They didn’t have control over their own caseloads, and Gary Robbins was giving them cases that were lower in their priorities. This also irritated the Presiding Judge. The Juvenile Court did not have control over its caseload. This damn lawyer (me) was creating work for them with lesser priority cases.
The result of private dependency petitions was that about half of the parents would get clean and sober, and did so for a period of time, to get their kids back. (My grandparent clients were thrilled, they had gotten their adult children back again.) In the other half of the cases, the children stayed in the loving home of their relatives, and would see their parents only when they were clean and sober.
Getting Shot Down by the Presiding Judge
In November 1991 I had a case before the Presiding Judge. He decided to put an end to my filing of Private Dependency Petitions. On his own motion, he removed my clients as Petitioners, and substituted Child Protective Services as the Petitioner. He then removed my clients as a party, arguing that the Child’s Attorney would represent the interests of the child. The only thing he did not do was to throw us out of the closed hearing.
There was confluence of two issues for me. First, I really believed in Private Dependency Petitions. Second, they were the bread and butter of my practice. (In 1991, I was paid $30 an hour for Court Appointments, but $150 an hour for private work.) So, my beliefs and my financial well-being were both being impacted.
I filed a motion for reconsideration and made it clear to the Court that I was ready to appeal the case to the Court of Appeals. Before the time for me to file an appeal expired, the Presiding Judge ordered that my clients again be recognized as parties, and thus could call witnesses and speak to the Court, but that Child Protective Services would still be the Petitioner.
Let’s pass a new law!
I needed to have a solution so that this situation would not repeat in the future. The answer? Well, just pass a law! A law that both the Juvenile Court Judges and Child Protective Services would oppose.
In 1986 the Arizona Supreme Court had issued an Opinion in Bechtel v. Rose, 150 Ariz. 68, 722 P.2d 236 that a grandparent should be allowed to “intervene” and participate in hearings as a party concerning their grandchild when that grandparent’s adult child had died.
My idea was for the legislature to expand the law on intervention to include all relatives and all foster parents in every dependency case upon request. This was an astonishingly over-broad remedy for the problem, but I wanted to make my strongest request at the beginning. I drafted proposed language and started to contact legislators.
I was able to talk to Judge X who had recently rotated out of Juvenile Court, and he agreed with me that it was wrong for the Presiding Judge to have removed my party status. He agreed to support my legislation if I would make some changes to it to make it more moderate. I quickly agreed.
I found two legislators who were interested, a Democratic member of the House of Representatives and a Republican State Senator. (Ironically, both members were in the minority, as the Democrats had taken over the State Senate by one vote.)
They liked the bill and agreed to sponsor it. Then I systematically went to my legislators and all legislators on the relevant committees and sought their co-sponsorship.
One of my cases involved foster parents who had become very attached to a foster child in their home, and I was successful in obtaining party status for that foster parent. If memory serves, they were able to adopt that child, despite static from Child Protective Services. (For example, Child Protective Services would object to white foster parents adopting black foster children who had been in their homes for years.) Those foster parents were part of an advocacy group, “Foster Parents of Maricopa County.” They certainly had an ax to grind with Child Protective Services (and the Juvenile Courts).
The Special Action Amicus Curiae Brief
In the meanwhile, Judge X who had liked my bill with modifications had allowed intervention by double second cousins in a dependency case. Child Protective Services was outraged and filed a “Special Action” seeking to reverse that judge’s ruling. I filed an Amicus Curiae brief in that Special Action on behalf of the “Foster Parents of Maricopa County.”
Child Protective Services was outraged that I had filed an Amicus Curiae brief on the Special Action about intervention. They filed a motion to strike arguing that the rules for Special Actions in Juvenile Cases were so accelerated, they were inconsistent with Amicus Curiae filings. I argued that the rules had to be read together, in a consistent fashion and that I was very aware of the issues having filed numerous Petitions to intervene. We appeared before a Judge of the Court of Appeals who decided that while the rules did not allow the filing of an Amicus Curiae brief in Juvenile Court Special Actions, they did not prohibit it either. He refused to strike my Amicus Curiae brief. Child Protective Services and the Assistant Attorney General fumed.
Getting the bill heard
The bill was filed and given a number, say H.B. [House Bill] 2123. I then wrote a letter to every foster parent in Maricopa County about how Child Protective Services would act high-handedly and would prevent them from addressing the court about the foster children in their homes. I gave them the addresses of their legislators and asked them to contact their legislators to support H.B. 2123.
A few hints on letters to legislators. They should be on one page only and should include the number of the bill in the “Re:” line. Better yet, use a yellow highlighter on the most important sentence. The legislators get inundated with letters from constituents. The legislators file these letters under each bill number. When a bill comes up, they can look to see which way the wind is blowing. Legislator’s view is that each letter stands for ten other voters who feel strongly about an issue.
My sponsor in the House told me that while she had filed the bill for me, it was my job to get the bill set for hearing. Oh. So, I contacted the Chair of the House Committee, and asked for it to be put on the calendar. I also contacted every member of the committee and asked for them to ask the Chair to put the bill on the calendar. I also contacted my legislators and asked them to contact the Chair.
In the meanwhile, my letters to the foster parents were having their desired effect. They were writing their legislators and promoting H.B. 2123.
H.B. 2123 was set for a hearing. My presiding judge attended and said that all the Juvenile Judges in the State of Arizona disliked H.B. 2123. My sponsor sharply asked him about Judge X’s support of the bill? He fumbled and said that Judge X was no longer a Juvenile Judge.
My presiding judge then asked for the Committee to talk and meet with the Juvenile Judges. My sponsor went crazy. She said, “I called you and your secretary said you did not have time to talk to me.” Well, even though she was a member of the minority party, legislators of both parties get really upset when any legislator, even one of the minority party, gets slighted by anyone, even a Superior Court Judge!
It was my turn to speak. You could say that I spoke truth to power. You could also say that I went waaaaaaay overboard and didn’t moderate when I should. I was vigorous and harsh. (Remember, my Presiding Judge would rule on my requests for payment on my hours as a court-appointed attorney. He was not a person to piss off.) Other attorneys from Juvenile Court were present about other bills and the talk of the Courthouse for awhile was how I took on my presiding judge, showing my courage and/or foolishness.
The Chair of the Committee appointed a subcommittee to discuss this issue. Shockingly, the sponsor of my bill, a member of the minority party was named as the Chair of this subcommittee!
The Deal
I met with my Presiding Judge. He was very, very pissed at me. We came to a compromise. The statutes would be changed to allow for a statutory “right of participation” by foster parents and relatives. They would not have full party status, and they couldn’t call witnesses, but they could come to Court. They could also seek party status by filing a motion to intervene.
The Bill Passes the House
The bill passed the Committee and the House of Representatives. At this point this bill was one of the top 10 in generating letters to legislators. The legislators saw that they had received numerous letters from constituents and unless they had strong feelings simply voted for the bill.
The State Senate
I had a new hurdle at the State Senate. My office was called by the State Senate President and I was invited to meet with him. Yikes! I was a Republican and he was a Democrat! When I met with him, I stressed that my sponsor in the House was a Democrat, and that almost all the Democrats had voted for the bill in the House. He said that he would assign the bill to a Committee.
We win at the Court of Appeals
On May 12, 1992 the Court of Appeals came down with its decision in Arizona Department of Economic Security v. Superior Court, 173 Ariz. 25, 839 P.2d 446. My position won 100%. Child Protective Services had wanted the Court of Appeals to reverse Judge X. The relatives and child’s attorney wanted the Court of Appeals to not accept jurisdiction at all. I wanted the Court of Appeals to accept jurisdiction, to affirm the trial court, and to publish their opinion which is exactly what the Court of Appeals did. The case is as follows:
https://www.courtlistener.com/opinion/1190293/dept-of-economic-sec-v-superior-court/
Well, I had substantially won what I wanted, but, heck, I had put so damn much time into this new law, I didn’t want to let it go.
The Double-Cross
The bill passed the State Senate and was sent to the Governor. However, my Presiding Judge made a last-ditch effort to have the governor veto the bill as unneeded given the new decision of the Court of Appeals.
I went back to the mailing list from the Foster Parents of Maricopa County. I wrote: “Folks, the legislature has passed a bill for those mean Child Protective Services caseworkers to no longer keep you out of Court. Now they are trying to have the Governor veto the bill! Call the Governor today!” They flooded the Governor’s Office with calls and letters. The Governor signed the bill.
Will
This started out as serious quest, but after winning at the Court of Appeals, became somewhat of a lark. I was very loose, while still focused. I had already pissed off my Presiding Judge, so I went for the bill to be enacted and signed by the Governor. At each step of the process, I had to again commit to the goal. There were about a dozen steps where I could have given up, and I kept going.
Postscript
The Republican State Senator Sponsor arranged for me to get my picture taken with our Republican Governor. Looking back, I noticed that both my State Senator Sponsor and the Governor had buttoned their suit coats for the picture, while I had left my coat unbuttoned. Compared to them, I looked like a slob. A lesson to be learned: button your suit coat for formal pictures, suck in your stomach and puff up your chest!
I had really pissed off my Presiding Judge, and things were chilly for awhile. Several months later, I was talking on the phone to an attorney who had moved to Flagstaff. I told him that I was jealous of him. He said, “why don’t you just move here?” “I can do that?” “Sure.” “Um, can I take you out to dinner?” “Sure.” My wife and I went to dinner and committed that upon one of us getting a job in Flagstaff, we would move here. Serendipity happened, and in a couple of months we were living in Flagstaff. That should be the subject of a much longer post about the power of declaration and will.
The legislature completely overhauled the Dependency system a couple of years later. The right of relatives and foster parents to attend dependency hearings was maintained and strengthened.
Judge X, a Democrat, was named by Bill Clinton to the Ninth Circuit Court of Appeals, where he served with distinction. As a Republican, I vouched for him with Arizona Republican Senator Jon Kyl.
I ran into my Presiding Judge several years later and we healed the breach.
Shortly after I moved to Coconino County in November 1992 I filed a Private Dependency Petition. The Coconino County Juvenile Judge told me that he would not grant private dependency petitions as Child Protective Services did not like them. Oh well. Since my bread and butter had been rejected, I was forced to practice Family Law, instead of Juvenile Law. (When I moved to Flagstaff, I had filed over 40 private dependency petitions, the most of any attorney in Arizona.)
There have been other times when I have taken on what appear to be impossible projects. Each time I am reminded that in 1992, I single-handedly enrolled allies, and took on all Juvenile Judges and Child Protective Services and won, changing the law to protect children and the loving relatives who care for them when Mom and Dad are drinking and drugging, until they can get clean and sober. A great experience. A worthy battle.
Published in Group Writing
Here is the hyperlink for that case.
https://www.courtlistener.com/opinion/1190293/dept-of-economic-sec-v-superior-court/
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Good on you, Gary. The term “Child Protective Services” is, in many cases, an oxymoron.
Isn’t that the truth! They underfile and then overprosecute. They have no sense of balance, but an excess of righteousness.
… and sometimes they try to coverup some disastrous foster family placements.
I short-stopped the system one night on a violent domestic dispute. The wife stabbed her husband with shard from a broken plate. He had to go the hospital, she was going to go jail, and when he was released from the hospital, he was going to jail as well. They had a 10 year-old boy. I asked him about relatives. He said he would like his aunt and uncle to come and get him. I called them and told them to bring their ID’s. I checked them with dispatch, they came back clean. The aunt said he had been placed with them before because these fights were a common occurrence. They had been trying to get permanent custody of their nephew. I made a judgement call and sent the boy home with his aunt and uncle, rather than calling Children’s Services. He had his own room in their home, and some of his clothing was there as well. He might as well have breakfast with his aunt and uncle after the night he endured.
Perfect! If Aunt and Uncle had come into my office after your temporary placement, I would have filed on their behalf, and rammed it through.
If CPS had been involved they would have to first do a home study of aunt and uncle if they could be roused into action. However, if I had filed, the child would be with aunt and uncle pending CPS doing the home study.
Doug, you remind me of the boy who was throwing starfish back into the ocean. He was challenged by an adult who said that with all the starfish on the beach, it didn’t matter. The boy threw another starfish back into the ocean and said “Well it matters to him.”
As Mother Teresa said; If you cannot feed many, then just feed one.
That is so lovely. You live your faith.
Gary, I have to say that you are a scrappy little bulldog. I suppose it’s good to know that you spread it around and do it in places other than Ricochet.
This conversation is part of our Group Writing Series under August’s theme of Will. Gary just claimed the last future date in August, but if someone has a great idea for writing about the theme of will, I have a time machine and can slot you in on the 4th or 12th.
We won’t have to use a time machine, though, if you would like to write about Order. This is our September theme for Group Writing. The theme is broad, so you can use your imaginations. Want to talk about ordering at fast-food places now that they have kiosks instead of people? It would fit. Want to write about Law and Order, or even Law & Order? Good topics. Why not mosey on over to our sign-up sheet and pick a date to join us for Group Writing? We’ll keep a light on for you.
The funny thing is that I am a bit like Trump in being a scrappy bulldog! The irony!
Thanks for writing that up. It is informative about how legislation gets passed, and also about Child Protective Services. Good work!
Gary,
You know who I am and whom I support. We have certainly crossed swords on many occasions, and even our personalities radically differ.
This may be the only thread where we will ever agree on something, or that I will refer to your efforts as praiseworthy, but this was damned fine work, Gary. You took on a bureaucracy and won a victory for justice and equity.
You have no idea how much I appreciate your kindness and generosity of spirit. Thank you for your commitment to children.
Very interesting look into the inner workings of local courts and government.
It wasn’t until the first child was born into my immediate family that I really understood how totally dependent on adults children are (small ones especially).
Thanks for standing in the gap for children, Gary. They are our most precious gift.
That was good and important work you did.
Thank you so much. You and I have more in common than we have different.
What a wonderful post and an amazing story. It is exactly stories like this that keep our Republic going. When people give up on this kind of action then and only then is our Republic doomed. Fine, fine work Gary.
Gary, thanks for an interesting account of a process few of us have experienced. I certainly don’t think of legislating as a coordinated grass-roots effort, though obviously it must often be exactly that.
Despite having adopted three children, I’ve had no interaction with social services or the courts. (This is one great advantage of international adoption, in my opinion.) But I have a friend, a mother of six, who went through an awful time when she discovered that her (now-ex) husband was sexually abusing one of their children. One of her greatest challenges was that the husband’s parents were essentially complicit, and they intervened as grandparents in the subsequent custody battles.
My friend ultimately prevailed in each legal challenge, gained sole custody with no visitation rights for either the father or his parents, and eventually moved out of state to raise her children in safety. But the specter of the grandparents (and, through them, her ex-husband) securing access to the children haunted her until their last appeal was defeated. I appreciate the value of extended family input in the cases you describe, but am also wary of it because of my second-hand experience with this particular family.
Thanks again for a walk through the practical aspects of being an engaged citizen. Well done.
A page right out of The Art of the Deal.
Good story, and good for you, Gary!
You should hunt down King Prawn’s post about his woes. Makes for sad but interesting reading.
CPS is a hard job. Usually underfunded without enough resources. I know many a person who worked for them in GA and were happy to not work there anymore.
Good job fighting the good fight. The whole idea of the government stopping testamony is unAmerican.
Back in the days when I was managing VAX/VMS systems one of the occasional user group meetings featured the computer systems and database systems for Michigan’s CPS in Lansing. It was astounding to see the size of the operation – the number of computers and the disk farm needed to handle child support payments and keep track of fathers, etc. I had no idea until then.
It does not speak well of our society that it takes that level of government involvement to protect children’s welfare. But I guess that’s the price we pay for economic growth.
Would love to know what @ryanm thought about all this!
Well, I didn’t have much time to read through it. Ironically, I was in court all day yesterday and today…
My immediate impression is that Gary and I have had very different experiences; some of that is based on the time – his practice in the early ’90’s, and mine right now. But it also seems that the laws in Arizona are a bit different from what I’ve experienced.
My general philosophical approach is influenced by a more fundamental belief that problems cannot be adequately solved by government agencies (even well-meaning ones). As such, I cannot envision any situation that I’ve been in where I would ever desire to initiate a dependency as Gary has described. However, I think a more thorough reading of his post is necessary…
That is an interesting story… I don’t quite understand how you could have a negotiation with a sitting judge about changes in legislation, but I assume you’ve summarized and simplified.
I tend to find myself on both sides of the equation at one time or another (of, as I often say, everyone loves you until they don’t). I will often argue on behalf of foster parents, but I also see the flip side of that – they are not, nor should they be, parties to the case. The potential ramifications to their (legal) involvement are kind of scary if you look at the big picture (though often seemingly justified in individual cases).
I think that the whole idea of private dependency petitions sounds terrible. But again, I have no idea what the law was like in Arizona in 1991.
The potential for trouble lies in the fact that CPS wields a great deal of power, as do courts in dependency actions. I mean, the power to terminate parental rights – I can’t think of many things more serious than that (as a dad, I can think of literally nothing I would not do to protect my own family, and as a conservative/libertarian, I also tend to think of the state as a threat, not as a friend) – which is why this is one area of civil law that we often rightfully impose many of the defendant-protections of criminal law.
Family law is messy enough, and custody battles are messy enough, I cannot even imagine giving third parties the ability to file dependency petitions (they already have the ability to file dependency intakes). Also, the goal of literally every dependency action is reunification. If this process were to be used as a tool in family and marital disputes, I can see a great potential for harm and for abuse.
Then again – I repeat myself by saying that I don’t know what the law was like in Arizona in 1992. I have only seen two privately-filed dependency petitions, and both are currently ongoing cases. I am highly skeptical of (if not downright opposed to) both, and I think both are excellent examples of why these things ought not exist. Of course, no elaboration to follow, as they are ongoing cases.
It may well be that there was a great deficiency (ha ha) in the system, and that Gary’s intervention helped pave the way for a much-needed overhaul, which is why such a thing is presently so off-putting to me, and if so, I applaud you for that! I, too, have attempted to take on the state, though on a much smaller scale, with little resemblance to the expended vigor, and the success that you seem to have attained.
We were the major protagonists; the legislators wanted the two of us to fashion a compromise. Over my 10 years I had represented over 200 foster kids, 50 natural parents, and 40 relatives.
The evolution of the law is that foster parents are now invited to come to hearings. In fact, dependency cases are now open to the public, if menmbers of the public agree to not release any information that would indentify the child, subject to criminal sanction and an admonishment is read if a member of the public is present.
In one of the 40 cases the grandparent was found to be nuts, and the child was returned promptly. There was a finding of dependency in 90% of the 40 private dependency petition cases I had filed.
There is now a treatment plan in all dependency cases, including urine screens. If the parents can show themselves to be clean and sober for 30-60 days, they get their kids back. This happened about half of the time.
In almost all of my cases, the child was already with the grandparents when we filed. (Getting an ex parte “pick-up” Order was much, much harder.) When my clients already had the kids (due to an informal placement by the parents), we were seeking an ex parte order to maintain the status quo until there could be a hearing.
CPS underfiles, but if they file, they overprosecute. I am not in love with the tender mercies of the government.
Angry parents make spiteful and vengeful CPS referrals against the other parent. It is often an abused system. We are lucky in my County; our Family Court Judge has been a Family Court Judge for 11 years, and practiced family law beforehand. She knows the games that can be played.
The laws of every state are different. In Arizona, as of 1991, there were four ways for a non-parent to care for a child; only one way allowed for ex parte intervention without consent.
I hope that this information is helpful. Thank you for your commitment to children and for posing appropriate concerns about how this could be abused.
I do a lot of CPS work here in Texas. The republican party reportedly has on its plank to abolish CPS. I don’t think it’s taken very seriously.
I admire your determination to get a law passed, but I am not at all going to agree that this was a good call. Having CPS involved in a family is about the worst curse I can imagine. There is nothing good about it, except when children are being abused and neglected and there’s no other way to help them.
If I understand you correctly, you wanted to pass a law (later watered down) that would allow any remote family member to bring a CPS case to court without CPS wanting it. You cited an example of a child being safe at the home of a relative, by agreement of the parents. My god, man, what are you thinking? The child is safe and you think the government needs to get involved? You would allow very distant relatives to intervene in a CPS case no matter their past contacts with the child? There is no way I would ever support that.
There are a lot of important ways to reform CPS no matter how good they are, but this seems perverse. I hope I read this wrong.
The situation I am talking about is where parties are active drinkers or druggers, and the children have been cared for by relatives, ususally grandparents. The parents come by to demand money from the grandparents, and if the grandparents refuse, the parents say that they will take the children. The grandparents cave and give the parents money. A week later the parents show up again and demand money. The grandparents give miney. The parents keep showing up, demanding money. The grandparents are being extorted.
Yes. Because the police of the Phoenix Police Department was to give kids back to any biological parent, under any circumstance. The police sergeant I talked to said that he had no choice. The child was the possession of the biological parent.
As the law was considered by the legislature, no. In the ordinary course of events, the child had been living with the grandparents for months to years while the parents were drifting into addiction.
Nor should you. But there was no other way to maintain the status quo without an Order. And Legal Guardianship required consent. And under In Loco Parentis, a grandparent would not qualify; the child had treated the grandparent as a custodian, not as a “parent.” Also, the In Loco Parentis statute did not allow for temporary orders, so the biological parents can disappear into the crack house with baby in tow. (Baby at this point is a meal ticket.)
I think you did. CPS has huge powers, when it acts. But they don’t act until blood and bruises.
yeah, you’re using a 500 pound bomb when a spatula would work. In Texas I would advise grandparents to file a private petition for possession of the children. There is no need for CPS to be involved because the children are not in danger. Every state is different, and Texas is very weird with grandparents compared to most states, but even in Texas a grandparent with significant contacts with the child can file a petition for a new case. Once the petition is filed, either the court has a standing order that the children are not disrupted or in counties without a standing order the grandparents can just ask for an injunction not to move the kids from where they are living.
I would never ever want CPS involved unless they had to be.
In Arizona, we don’t have that “spatula” available. I wish that we did. I would have loved a private petition for possession of the children. However Arizona doesn’t have such a law.
I agree, the CPS cure can be far worse than the disease, but this is not the time for those war stories.
Hard cases with no good answers
And here we have yet another case of CPS abuse
https://www.yahoo.com/gma/child-services-investigates-mother-her-letting-8-old-214909422–abc-news-topstories.html