‘Untethered to the evidence’: Court reverses DCS case that cut mom off from kids
Arizona – In a rare move, the state Court of Appeals has reversed a decision that severed a mother’s rights to her two children, saying state child-welfare workers presented a case “not sufficiently rooted in the evidence.”
The court cited numerous flaws in the evidence — or a lack thereof — presented by a Department of Child Safety caseworker, as well as a state-appointed psychologist who evaluated the mother. Writing for the three-judge panel, Acting Presiding Judge Peter B. Swann concluded there appeared to be only one motive to separate the mother from her kids: that the children were adoptable.
The court reversed the decision of Juvenile Court Judge Cari Harrison and sent the matter back to the Juvenile Court. It is unclear what will come next.
In a statement, DCS noted the action is highly unusual, something that was echoed by the courts, as well as the Attorney General’s Office, which represents the agency.
DCS reviewing the case
DCS said it is evaluating its next move.
“We will conduct a careful review of the facts of this case before deciding how to proceed, as we do in each case when considering what permanency plan is most appropriate,” spokesman Darren DaRonco said in an emailed statement.
Repeated attempts to contact the attorney who represented the mother were not successful.
It is also unknown when the rights of the mother, identified only as “Alma S.” in court documents, were severed, where the children have been in the meantime, and where they are now in the wake of the court’s finding.
Because of privacy laws, cases involving children in DCS custody do not contain information that would lead to the identification of the children.
Hospital visit triggers DCS involvement
The case dates back 2½ years, when a hospital official called DCS after seeing one of the children for a fractured leg bone, a fractured rib that was on the mend and multiple bruises. Hospitals are required by law to report injuries that might suggest child abuse.
While the initial DCS plan was to provide services to the family and keep it together, in early 2016 the plan shifted to severance and adoption. By the time the court was ready to issue a decision, the father said he would not fight the severance recommendation, and had his rights revoked.
The mother, however, did not agree to the severance plan. In court, she invoked her Fifth Amendment right to remain silent when asked about domestic violence, why she didn’t bring her child to the hospital immediately and whether she was aware of the severity of the child’s injuries.
Without her testimony, the Juvenile Court judge relied on the psychologist’s evaluation of the mother. The psychologist submitted a report finding the mother had substance-abuse issues, personality disorders and concluded her chances of being a good parent were “poor at best.”
While an appeals court normally gives great deference to such finding, Swann wrote, a review of the record showed that evaluation was “untethered to the evidence.”
Failing to do the basics
In a 15-page ruling, he faulted how the case was constructed and concluded the evidence does not support cutting off the mother’s rights to parent her children.
The ruling details how a new case manager, assigned to the matter in summer 2016, failed to do the basics of the job.
For example, the case manager never met with the mother outside of court hearings, only consulted with one of the social-service providers who worked with the mother on various issues, never checked out her suspicions that the mother was still dating the birth father of the child who had been brought to the hospital, never visited the mother’s home to see if it would be safe for the kids and only read several of the 145 pages of parent-aide notes filed in the case. Parent aides supervise visits between parents and children to evaluate their interactions.
The psychologist, according to the court ruling, received only partial information from DCS, dating from the earlier stages of the case.
The agency did not include later reports that showed the mother had successfully complied with all of the work DCS was requiring her to do in order to get her kids back, including results that showed she was testing clean for drugs, had received domestic-violence counseling and had an eight-month track record of successful supervised visits with her children, “where she always came prepared and showed proper parenting skills.”
The court also faulted the psychologist for failing to evaluate the mother’s parenting skills and suggested the subsequent report submitted to the court was “so lacking that we question (though we do not here decide) its admissibility.”
‘Adoptable’ a reason to take the kids
In reversing the Juvenile Court’s ruling, the appeal panel said it found little evidence that it would be in the children’s best interests to sever the mother’s rights.
“(A)part from these unsupported, conclusory opinions, the only evidence that severance is in the children’s best interests is the fact that the children are adoptable,” the appeals ruling stated. And it noted there apparently was no opportunity to adopt the children into the same household, meaning the siblings would be permanently separated.
The judges noted it is not permissible to adopt out children on the assumption that someone with better parenting skills might be able to care for a child. Instead, DCS must show a “substantial likelihood” that the parent cannot effectively parent in the near future.
The other judges, who joined in Swann’s conclusions, were Michael J. Brown and Patricia A. Orozco.
About this report
In 2016, when the number of children removed from their families peaked at more than 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 Mary Jo Pitzl and our other staff experts investigate the reasons behind the surge in foster children and the systems meant to support and protect them.