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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!
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:
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 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.
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.
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