Wednesday, January 25, 2017

§ 13-2302. Making Extortionate Extensions Of Credit; Classification

§ 13-2302. Making Extortionate Extensions Of Credit; Classification

13-2302. Making extortionate extensions of credit; classification

A. Any person who makes an extortionate extension of credit is guilty of a class 5 felony.

B. In any prosecution pursuant to this section, if it is shown that all of the following factors were present in connection with the extension of credit, there is prima facie evidence that the extension of credit was extortionate:

1. The repayment of the extension of credit, or the performance of any promise given in consideration thereof, would be unenforceable at the time the extension of credit was made through civil judicial processes against the debtor in the county within which the debtor, if a natural person, resided or in every county within which the debtor, if other than a natural person, was incorporated, or qualified to do business.

2. The extension of credit was made at a rate of interest in excess of an annual rate of forty-five per cent calculated according to the actuarial method of allocating payments made on a debt between principal and interest, pursuant to which a payment is applied first to the accumulated interest and the balance is applied to the unpaid principal.

3. At the time the extension of credit was made, the debtor reasonably believed that either of the following:

(a) One or more extensions of credit by the creditor had been collected or attempted to be collected by extortionate means, or the nonrepayment had been punished by extortionate means.

(b) The creditor had a reputation for the use of extortionate means to collect extensions of credit or to punish the nonrepayment thereof.

4. Upon the making of the extension of credit, the total of the extensions of credit by the creditor to the debtor then outstanding, including any unpaid interest or similar charges, exceeded one hundred dollars.

C. In any prosecution pursuant to this section, if evidence has been introduced tending to show the existence of any of the circumstances described in subsection B, paragraph 1 or 2, and direct evidence of the actual belief of the debtor as to the creditor's collection practices is not available, then for the purpose of showing the understanding of the debtor and the creditor at the time the extension of credit was made, the court may in its discretion allow evidence to be introduced tending to show the reputation as to collection practices of the creditor in any community of which the debtor was a member at the time of the extension.

§ 13-2301. Definitions

§ 13-2301. Definitions

13-2301. Definitions

A. For the purposes of sections 13-2302, 13-2303 and 13-2304:

1. "Collect an extension of credit" means to induce in any way any person to make repayment of that extension.

2. "Creditor" means any person making an extension of credit or any person claiming by, under or through any person making an extension of credit.

3. "Debtor" means any person to whom an extension of credit is made or any person who guarantees the repayment of an extension of credit, or in any manner undertakes to indemnify the creditor against loss resulting from the failure of any person to whom an extension is made to repay the extension.

4. "Extend credit" means to make or renew any loan or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or shall be deferred.

5. "Extortionate extension of credit" means any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time the extension is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person or the reputation or property of any person.

6. "Extortionate means" means the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person or the reputation or property of any person.

7. "Repayment of any extension of credit" means the repayment, satisfaction or discharge in whole or in part of any debt or claim, acknowledged or disputed, valid or invalid, resulting from or in connection with that extension of credit.

B. For the purposes of section 13-2305, 13-2306 or 13-2307:

1. "Dealer in property" means a person who buys and sells property as a business.

2. "Stolen property" means property of another as defined in section 13-1801 that has been the subject of any unlawful taking.

3. "Traffic" means to sell, transfer, distribute, dispense or otherwise dispose of stolen property to another person, or to buy, receive, possess or obtain control of stolen property, with the intent to sell, transfer, distribute, dispense or otherwise dispose of the property to another person.

C. For the purposes of this chapter:

1. "Animal activity" means a commercial enterprise that uses animals for food, clothing or fiber production, agriculture or biotechnology.

2. "Animal facility" means a building or premises where a commercial activity in which the use of animals is essential takes place, including a zoo, rodeo, circus, amusement park, hunting preserve and horse and dog event.

3. "Animal or ecological terrorism" means any felony in violation of section 13-2312, subsection B that involves at least three persons acting in concert, that involves the intentional or knowing infliction of property damage in an amount of more than ten thousand dollars to the property that is used by a person for the operation of a lawfully conducted animal activity or to a commercial enterprise that is engaged in a lawfully operated animal facility or research facility and that involves either:

(a) The use of a deadly weapon or dangerous instrument.

(b) The intentional or knowing infliction of serious physical injury on a person engaged in a lawfully conducted animal activity or participating in a lawfully conducted animal facility or research facility.

4. "Biological agent" means any microorganism, virus, infectious substance or biological product that may be engineered through biotechnology or any naturally occurring or bioengineered component of any microorganism, virus, infectious substance or biological product and that is capable of causing any of the following:

(a) Death, disease or physical injury in a human, animal, plant or other living organism.

(b) The deterioration or contamination of air, food, water, equipment, supplies or material of any kind.

5. "Combination" means persons who collaborate in carrying on or furthering the activities or purposes of a criminal syndicate even though such persons may not know each other's identity, membership in the combination changes from time to time or one or more members may stand in a wholesaler-retailer or other arm's length relationship with others as to activities or dealings between or among themselves in an illicit operation.

6. "Communication service provider" has the same meaning prescribed in section 13-3001.

7. "Criminal syndicate" means any combination of persons or enterprises engaging, or having the purpose of engaging, on a continuing basis in conduct that violates any one or more provisions of any felony statute of this state.

8. "Explosive agent" means an explosive as defined in section 13-3101 and flammable fuels or fire accelerants in amounts over fifty gallons but excludes:

(a) Fireworks as defined in section 36-1601.

(b) Firearms.

(c) A propellant actuated device or propellant actuated industrial tool.

(d) A device that is commercially manufactured primarily for the purpose of illumination.

(e) A rocket having a propellant charge of less than four ounces.

9. "Material support or resources" includes money or other financial securities, financial services, lodging, sustenance, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, disguises and other physical assets but does not include medical assistance, legal assistance or religious materials.

10. "Public establishment" means a structure that is owned, leased or operated by this state or a political subdivision of this state or a health care institution as defined in section 36-401.

11. "Research facility" means a laboratory, institution, medical care facility, government facility, public or private educational institution or nature preserve at which a scientific test, experiment or investigation involving the use of animals is lawfully carried out, conducted or attempted.

12. "Terrorism" means any felony, including any completed or preparatory offense, that involves the use of a deadly weapon or a weapon of mass destruction or the intentional or knowing infliction of serious physical injury with the intent to either:

(a) Influence the policy or affect the conduct of this state or any of the political subdivisions, agencies or instrumentalities of this state.

(b) Cause substantial damage to or substantial interruption of public communications, communication service providers, public transportation, common carriers, public utilities, public establishments or other public services.

13. "Toxin" means the toxic material of plants, animals, microorganisms, viruses, fungi or infectious substances or a recombinant molecule, whatever its origin or method of reproduction, including:

(a) Any poisonous substance or biological product that may be engineered through biotechnology and that is produced by a living organism.

(b) Any poisonous isomer or biological product, homolog or derivative of such substance.

14. "Vector" means a living organism or molecule, including a recombinant molecule or biological product that may be engineered through biotechnology, that is capable of carrying a biological agent or toxin to a host.

15. "Weapon of mass destruction" means:

(a) Any device or object that is designed or that the person intends to use to cause multiple deaths or serious physical injuries through the use of an explosive agent or the release, dissemination or impact of a toxin, biological agent, poisonous chemical, or its precursor, or any vector.

(b) Except as authorized and used in accordance with a license, registration or exemption by the radiation regulatory agency pursuant to section 30-672, any device or object that is designed or that the person intends to use to release radiation or radioactivity at a level that is dangerous to human life.

D. For the purposes of sections 13-2312, 13-2313, 13-2314 and 13-2315, unless the context otherwise requires:

1. "Control", in relation to an enterprise, means the possession of sufficient means to permit substantial direction over the affairs of an enterprise and, in relation to property, means to acquire or possess.

2. "Enterprise" means any corporation, partnership, association, labor union or other legal entity or any group of persons associated in fact although not a legal entity.

3. "Financial institution" means any business under the jurisdiction of the department of financial institutions or a banking or securities regulatory agency of the United States, a business coming within the definition of a bank, financial agency or financial institution as prescribed by 31 United States Code section 5312 or 31 Code of Federal Regulations section 1010.100 or a business under the jurisdiction of the securities division of the corporation commission, the state real estate department or the department of insurance.

4. "Racketeering" means any act, including any preparatory or completed offense, that is chargeable or indictable under the laws of the state or country in which the act occurred and, if the act occurred in a state or country other than this state, that would be chargeable or indictable under the laws of this state if the act had occurred in this state, and that would be punishable by imprisonment for more than one year under the laws of this state and, if the act occurred in a state or country other than this state, under the laws of the state or country in which the act occurred, regardless of whether the act is charged or indicted, and the act involves either:

(a) Terrorism, animal terrorism or ecological terrorism that results or is intended to result in a risk of serious physical injury or death.

(b) Any of the following acts if committed for financial gain:

(i) Homicide.

(ii) Robbery.

(iii) Kidnapping.

(iv) Forgery.

(v) Theft.

(vi) Bribery.

(vii) Gambling.

(viii) Usury.

(ix) Extortion.

(x) Extortionate extensions of credit.

(xi) Prohibited drugs, marijuana or other prohibited chemicals or substances.

(xii) Trafficking in explosives, weapons or stolen property.

(xiii) Participating in a criminal syndicate.

(xiv) Obstructing or hindering criminal investigations or prosecutions.

(xv) Asserting false claims including, but not limited to, false claims asserted through fraud or arson.

(xvi) Intentional or reckless false statement

Tuesday, January 24, 2017

8-802. Child safety worker; fingerprint clearance cards; interview requirements; temporary custody limit; cooperation and coordination; alteration of files; violation; classification

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 8 - Dependent Children

§ 8-802. Child Safety Worker; Fingerprint Clearance Cards; Interview Requirements; Temporary Custody Limit; Cooperation And Coordination; Alteration Of Files; Violation; Classification

8-802. Child safety worker; fingerprint clearance cards; interview requirements; temporary custody limit; cooperation and coordination; alteration of files; violation; classification

A. The department shall employ child safety workers. All persons who are employed as child safety workers shall have a valid fingerprint clearance card that is issued pursuant to section 41-1758.07 or shall apply for a fingerprint clearance card within seven working days of employment. A child safety worker shall certify on forms that are provided by the department and that are notarized whether the worker is awaiting trial on or has ever been convicted of any of the criminal offenses listed in section 41-1758.07, subsections B and C in this state or similar offenses in another state or jurisdiction.

B. A worker shall not interview a child without the prior written consent of the parent, guardian or custodian of the child unless either:

1. The child initiates contact with the worker.

2. The child who is interviewed is the subject of or is the sibling of or living with the child who is the subject of an abuse or abandonment investigation pursuant to section 8-456.

3. The interview is conducted pursuant to the terms of the protocols established pursuant to section 8-817.

C. A child shall not remain in temporary custody for a period exceeding seventy-two hours, excluding Saturdays, Sundays and holidays, unless a dependency petition is filed. If a petition is not filed and the child is released to the child's parent, guardian or custodian, the worker shall file a report of removal with the central registry within seventy-two hours of the child's release. The report shall include:

1. The dates of previous referrals, investigations or temporary custody.

2. The dates on which other children in the family have been taken into temporary custody.

D. All child safety workers shall be trained and demonstrate competency in:

1. The duty to protect the legal rights of children and families from the time of the initial contact through treatment. The training shall include knowledge of a child's rights as a victim of crime.

2. The legal rights of parents.

3. Impact and intervention practices related to adverse childhood experiences, culturally and linguistically appropriate service delivery, domestic violence, family engagement, communication with special populations and trauma informed responses.

E. All child safety workers shall cooperate and coordinate with the office of child welfare investigations to carry out the purposes of section 8-471.

F. All child safety workers and child welfare investigations workers shall cooperate and coordinate with the inspections bureau to carry out the purposes of section 8-458.

G. All child welfare investigations workers and inspections bureau workers shall cooperate and coordinate with the rest of the department to achieve the purposes of this title.

H. Any person who alters a client file for the purpose of fraud or misrepresentation is guilty of a class 2 misdemeanor.

§ 8-801. Definitions

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 8 - Dependent Children

§ 8-801. Definitions

8-801. Definitions

In this article and articles 9, 10, 11, 12, 13 and 14 of this chapter, unless the context otherwise requires:

1. "Child safety services" means a specialized child welfare program that is administered by the department as provided in this chapter and that investigates allegations of and seeks to prevent, intervene in and treat abuse, and neglect, to promote the well-being of the child in a permanent home and to coordinate services to strengthen the family.

2. "Child safety worker" or "worker" means a person who has been selected by and trained under the requirements prescribed by the department and who assists in carrying out the provisions of this article.

3. "In-home intervention" means a program of services provided pursuant to article 14 of this chapter while the child is still in the custody of the parent, guardian or custodian.

4. "Relative" has the same meaning prescribed in section 8-501.

Saturday, January 21, 2017

Art. 11 - Permanency Determination § 8-863. Hearing To Terminate Parental Rights; Notice; Grounds

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 11 - Permanency Determination

§ 8-863. Hearing To Terminate Parental Rights; Notice; Grounds

8-863. Hearing to terminate parental rights; notice; grounds

A. At least ten days before the initial hearing on the termination of parental rights pursuant to this article, the party who is responsible for filing a motion pursuant to section 8-862, subsection D shall serve the motion on all parties as prescribed in rule 5(c) of the Arizona rules of civil procedure, including any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement.

B. The court may terminate the parental rights of a parent if the court finds by clear and convincing evidence one or more of the grounds prescribed in section 8-533.

C. If a parent does not appear at the hearing, the court, after determining that the parent has been served as provided in subsection A of this section, may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear. The court may terminate the parent-child relationship as to a parent who does not appear based on the record and evidence presented as provided in rules prescribed by the supreme court.

D. Sections 8-538 and 8-539 apply to orders of termination issued pursuant to this section.

§ 8-863. Hearing To Terminate Parental Rights; Notice; Grounds

§ 8-863. Hearing To Terminate Parental Rights; Notice; Grounds

§ 8-863. Hearing To Terminate Parental Rights; Notice; Grounds

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 11 - Permanency Determination

§ 8-863. Hearing To Terminate Parental Rights; Notice; Grounds

8-863. Hearing to terminate parental rights; notice; grounds

A. At least ten days before the initial hearing on the termination of parental rights pursuant to this article, the party who is responsible for filing a motion pursuant to section 8-862, subsection D shall serve the motion on all parties as prescribed in rule 5(c) of the Arizona rules of civil procedure, including any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement.

B. The court may terminate the parental rights of a parent if the court finds by clear and convincing evidence one or more of the grounds prescribed in section 8-533.

C. If a parent does not appear at the hearing, the court, after determining that the parent has been served as provided in subsection A of this section, may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear. The court may terminate the parent-child relationship as to a parent who does not appear based on the record and evidence presented as provided in rules prescribed by the supreme court.

D. Sections 8-538 and 8-539 apply to orders of termination issued pursuant to this section.

Thursday, January 19, 2017

Fetal Rights part 2

Despite these arguments, the Fifth District Court of Appeals, in Florida, upheld Johnson's conviction. It agreed with the prosecution's argument that Johnson's umbilical cord had delivered cocaine to her children after their birth but before the cord was cut, thereby violating a Florida statute against the delivery of a controlled substance to a minor (Fla. Stat. Ann. §893.13(1)(c) [West 1991]).

States will continue to struggle with this issue as they seek to achieve the best balance between maternal and fetal rights. States will also have to consider whether or not to hold criminally liable women whose use of legal substances such as alcohol or tobacco harms the fetus.

Fetal Protection Policies

Fetal protection policies bar fertile women from specific jobs out of fear that those jobs may cause harm to any embryos or fetuses the women might be carrying. These policies came into widespread use by many companies during the 1970s and 1980s, before a 1991 U.S. Supreme Court decision, UAW v. Johnson Controls, 499U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, declared them a form of sexual discrimination that violates Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq. [1982]). Despite the Court's decision in Johnson Controls, those critical of fetal protection policies feared that the policies would be continued in more subtle forms.

Willow Island, West Virginia, Women Paid the Price of Fetal Protection Policies

The 1991 U.S. Supreme Court ruling that declared fetal protection policies to be a violation of Civil Rights laws came too late for five women from West Virginia who were forced by their employer to choose between undergoing a sterilization procedure to avoid health risks associated with their higher paying jobs, remaining fertile but moving to lower paying jobs, or quitting their jobs altogether (International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 [1991]). The women worked at an American Cyanamid factory in Willow Island, a poor region where decent-paying jobs were scarce. They were all among the first women to work in these factories, which, before 1974, had employed only men.

In 1978 the company introduced a policy that no fertile women would be allowed to work in its lead pigments department. The company claimed that hazardous chemicals in that department might harm women's reproductive system. Fertile women under age 50 would have to be sterilized or take jobs in other areas of the company, virtually all of which paid less. Men, whose reproductive system might also be damaged by lead, were not subject to restrictions.

The seven women then employed in the lead pigments department found themselves facing an agonizing choice: whether to reduce or sacrifice their income or undergo a surgical procedure that would render them unable to bear children. Five of the women chose sterilization.

The Labor Union to which the women belonged eventually took the women's case to court, claiming that the company's fetal protection policy represented a violation of federal occupational safety standards because it required an individual to be sterilized in order to be eligible for work. The union lost the case in the federal appeals court (Oil, Chemical, & Atomic Workers International Union v. American Cyanamid Co., 741 F.2d 444 [D.C. Cir. 1984]). However in the 1991 Supreme Court ruling, this decision was reversed.

Cross-references

Abortion; Civil Rights Acts; Women's Rights.

Johnson Controls grew out of a fetal protection policy created in 1982 by Johnson Controls, an automobile battery manufacturer. The company's policy excluded pregnant women and women capable of bearing children from battery manufacturing jobs. The company maintained that the jobs in its manufacturing plant exposed women to levels of lead that might harm any embryo or fetus they might be carrying.

In 1984, a group of Johnson Controls employees, together with their Labor Union, the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), filed aClass Action suit in federal court challenging the company's policy. They charged that the policy constituted Sex Discrimination in violation of federal civil rights law.

In the final ruling on the case, the U.S. Supreme Court held that fetal protection policies unfairly discriminate against women because they do not demand that men make a similar choice regarding the preservation of their reproductive health in a potentially hazardous workplace.

Companies that have created fetal protection policies argue that they are necessary to protect their employees. Critics of fetal protection policies maintain that they effectively exclude all women aged 15 to 50 from well-paying jobs unless the women can prove they have been sterilized. They also contend that such policies raise privacy questions because they often require women to provide proof that they cannot have children in order to take specific jobs. Critics also point to instances in which women have undergone sterilization procedures because they faced the loss of high-paying jobs. Other critics argue that male reproductive organs may also be affected by hazardous substances in such a way that a fetus might be harmed. Nevertheless, no company has created similar policies for men.

fourth amendment search and seizure cases can also touch on fetal rights. In Fergusonv. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d. 205 (2001), the Supreme Court ruled on a case concerning nonconsensual drug testing of pregnant women. In Ferguson the state argued that the drug testing was performed as a measure to help protect unborn fetuses and that these searches fell under the "special needs" exception to the Fourth Amendment. Cases recognizing the exception have employed a Balancing test weighing the harm caused by the warrantless intrusion on the individual's privacy interest against the "special needs" that supported the intrusion. The court held that the South Carolina state hospital's drug testing of pregnant patients to obtain evidence for law enforcement purposes does in fact violate the Fourth Amendment. The majority rejected the state's argument that testing fell within the "special needs" exception to the Fourth Amendment. The court said the state's interest in using the threat of criminal sanctions to deter pregnant women from using drugs does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. The court further held that the drug tests, conducted by the Medical University of South Carolina, constituted an unreasonable search if the patient had not consented to the procedure.

Further readings

Bates, Kelly F. 1995. "Cesarean Section Epidemic: Defining the Problem, Approaching Solutions." Boston University Public Interest Law Journal 4.

Blank, Robert H. 1992. Mother and Fetus: Changing Notions of Maternal Responsibility.Westport, Conn.: Greenwood Press.

Condoll, Blair D. 1994. "Extending Constitutional Protection to the Viable Fetus: A Woman's Right to Privacy." Southern University Law Review 22 (fall).

Faludi, Susan. 1991. Backlash: The Undeclared War on American Women. New York: Crown.

Samuels, Suzanne Uttaro. 1995. Fetal Rights, Women's Rights: Gender Equality in the Workplace. Univ. of Wisconsin Press.

Wellman, Carl. 2002. "The Concept of Fetal Rights." Law and Philosophy 21 (January).

Cross-references

Child Abuse; Drugs and Narcotics; Fetal Tissue Research; Parent and Child; Physicians and Surgeons.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Fetal Rights part 1

Fetal Rights

Fetal Rights

The rights of any unborn human fetus, which is generally a developing human from roughly eight weeks after conception to birth.

Like other categories such as Civil Rights andHuman Rights, fetal rights embraces a complex variety of topics and issues involving a number of areas of the law, including criminal, employment, health care, and Family Law.

Historically, under both English Common Lawand U.S. law, the fetus has not been recognized as a person with full rights. Instead, legal rights have centered on the mother, with the fetus treated as a part of her. Nevertheless, U.S. law has in certain instances granted the fetus limited rights, particularly as medical science has made it increasingly possible to directly view, monitor, diagnose, and treat the fetus as a patient.

The term fetal rights came into wide usage following the landmark 1973 Abortion case roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. In that case, the Supreme Court ruled that a woman has a constitutionally guaranteed unqualified right to abortion in the first trimester of her pregnancy. She also has a right to terminate a pregnancy in the second trimester, although the state may limit that right when the procedure poses a health risk to the mother that is greater than the risk of carrying the fetus to term. In making its decision, the Court ruled that a fetus is not a person under the terms of the Fourteenth Amendment to the U.S. Constitution. However, the Court also maintained that the state has an interest in protecting the life of a fetus after viability—that is, after the point at which the fetus is capable of living outside the womb. As a result, states were permitted to outlaw abortion in the third trimester of pregnancy except when the procedure is necessary to preserve the life of the mother.

Roe evoked impassioned responses from those who were morally or religiously opposed to abortion, and in the years following that case, abortion became one of the most contentious issues in U.S. law. Those opposed to the procedure became a powerful political lobby in the United States. Their efforts to promote the rights of unborn humans have had a significant effect on the law.

However, the cause of fetal rights has been greeted with suspicion by those who are concerned that the state may protect fetal rights at the expense of women's rights. For this reason, many feminists have been highly critical of claims regarding fetal rights. Such claims, they argue, can work to significantly diminish women's rights to self-determination and bodily autonomy.

At the same time, most legal experts recognize an increasing need to clarify the legal status of the fetus, particularly as technology has made it possible to regard the fetus as a patient independent of the mother. Some scholars have even gone so far as to ask that a model fetal rights act be passed so that states—which now exhibit a wide variety of approaches to fetal rights—may develop a more coherent legislative approach to the issue of fetal rights, one that will give courts more direction in deciding relevant cases.

The specific issues in which legal claims have been made regarding the rights of the fetus usually require a careful consideration of the sometimes competing rights of the woman and the fetus.

Forced Cesarean Sections

Because of improvements in fetal monitoring and surgical techniques, physicians increasingly recommend that women give birth by cesarean section, a surgical technique that involves removing the fetus through an incision in the woman's abdomen. In many cases, cesarean section improves the chance that the fetus will be delivered safely. By 1990, cesarean sections accounted for almost 23 percent of U.S. childbirths.

Some women choose not to undergo a physician-recommended cesarean section. They may do so for a variety of reasons, including a concern about their own risk of harm, including death, from the surgery; a desire to avoid repeated cesarean sections; or sincere religious, cultural, or moral beliefs. This situation has led to a number of legal questions, such as should a woman be forced to undergo a cesarean section or other surgery in the interest of the health of the fetus? To what extent is a woman obligated to follow the advice of her physician regarding the medical care of her fetus?

The 1980s saw an increasing number of cases in which hospitals and physicians sought court orders to force women to give birth by cesarean section. From 1981 to 1986, fifteen such cases were reported, and in thirteen of them, courts decided to require cesarean section. In a 1981 case, Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457, the Georgia Supreme Court held that an expectant mother in her last weeks of pregnancy did not have the right to refuse surgery or other medical treatment if the life of the unborn child was at stake. As has happened in a number of other instances, the pregnant woman named in the case avoided the procedure and later delivered a healthy child by natural birth.

Later court decisions, however, increasingly recognized a pregnant woman's right to refuse medical treatment. In a 1990 case, In re A. C., 573 A.2d 1235, the District of Columbia Court of Appeals ruled that a physician must honor the wishes of a competent woman regarding a cesarean section. The court's opinion was written after the woman involved in the case, Angela Carder, and her fetus died following a cesarean section forced by a lower court.

A 1994 Illinois case, Doe v. Doe, 260 Ill. App. 3d 392, 198 Ill. Dec. 267, 632 N.E.2d 326, involved a woman (called Doe to protect her anonymity) who was thirty-five weeks pregnant. Her doctor conducted tests that indicated her fetus was not receiving adequate oxygen. He therefore recommended that the fetus be delivered by cesarean section. Doe objected to the surgical procedure on the basis of her religious beliefs. The doctor and his hospital then contacted the Cook County state's attorney, who petitioned for a court order requiring the woman to undergo the cesarean procedure.

The case eventually reached the Illinois Appellate Court, which upheld Doe's right to refuse the cesarean section. The court held that a physician must recognize a woman's right to refuse a cesarean section. It found no statute or Illinois case to support the state's request to force a cesarean on a competent person. It also dismissed the state's argument that Roe's protections of a viable fetus authorized a forced cesarean.

The court also noted the position of theAmerican Medical Association (AMA) on the issue. The AMA has reminded physicians that their duty is to ensure that a pregnant woman is provided with the necessary and appropriate information to enable her to make an informed decision about her fetus and that that duty does not extend to attempting to influence her decision or attempting to force a recommended procedure upon her. The court assessed the action of the physicians in the Doecase to be in direct opposition to the AMA's clear edict.

Shortly after the court's decision, Doe gave birth to a healthy baby boy. The Supreme Court later declined to review the case. New types of fetal surgery now made possible by medical science promise to raise questions very similar to those found with forced cesarean sections.

Drug Use by the Mother

The use of illegal drugs such as cocaine and heroin can have a devastating effect on the health of a fetus. By the early 1990s, it was estimated that 375,000 children were born annually in the United States suffering from the effects of illegal drugs taken by their mother.

As a result, some states have held women criminally liable for any use of illegal drugs that harms their fetus. Prosecutors in many states have sought to deter such behavior by charging women with a number of crimes against their fetus, including delivery of drugs, criminal Child Abuse, assault with a deadly weapon, andManslaughter. Johnson v. State, 578 So. 2d 419 (Fla. 1991), demonstrates the controversial aspects of such prosecutions. In this case, a Florida district court of appeal upheld a lower court's conviction of a woman for the delivery of a controlled substance by umbilical cord to two of her four children. The decision was the first appellate ruling to uphold such a conviction.

Jennifer Johnson, a twenty-three-year-old resident of Seminole County, Florida, had been arrested in 1989 after two successive instances in which a child born to her tested positive for cocaine immediately after birth. Cocaine is especially harmful to a fetus, often causing premature birth, significant deformities and ailments, and even death. After Johnson's conviction in the Seminole County Circuit Court in 1989, the American Civil Liberties Union(ACLU) appealed the case with backing from an unusual alliance of medical and civil rights organizations, including the AMA, the American Public Health Association, the Florida Medical Association, and the National Abortion Rights Action League, all of which had different reasons for supporting the appeal.

The AMA stated that it opposed the use of criminal prosecutions against mothers. Imposing criminal sanctions, it said, does not prevent damage to fetal health and may violate the privacy laws between doctors and women, making doctors and hospitals agents of prosecution. The ACLU echoed the AMA, arguing that prosecutions of drug-addicted women for harm to their children will greatly damage women's health, their relationship to the healthcare community, and their ability to control their own body. It also maintained that the policies enacted against Johnson should be made by a state legislature and not the courts, and it pointed out that many more minority women than white women are reported for child abuse after testing positive for drugs.

Other critics argued that most child abuse statutes do not specifically mention drug use by pregnant women as an offense, thereby raising the question as to whether prosecutions on charges of drug use involve a denial of due process. Still others said that increased funding for substance abuse treatment programs was a much better approach to the drug problem. They saw prosecutions on drug abuse charges as doing little to treat the underlying addiction and argued that such prosecutions deter at-risk women from seeking prenatal care, increasing the likelihood of harm to the fetus.

§ 8-537. Termination Adjudication Hearing

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 5 - Termination Of Parent-child Relationship

§ 8-537. Termination Adjudication Hearing

8-537. Termination adjudication hearing

A. If a petition for terminating the parent-child relationship is contested, the court shall hold a termination adjudication hearing. The general public shall be excluded and only such persons admitted whose presence the judge finds to have a direct interest in the case or the work of the court, provided that such person so admitted shall not disclose any information secured at the hearing. The court may require the presence of any parties and witnesses it deems necessary to the disposition of the petition, except that a parent who has executed a waiver pursuant to section 8-535, or has relinquished the parent's rights to the child shall not be required to appear at the hearing.

B. The court's findings with respect to grounds for termination shall be based upon clear and convincing evidence under the rules applicable and adhering to the trial of civil causes. The court may consider any and all reports required by this article or ordered by the court pursuant to this article and such reports are admissible in evidence without objection.

C. If a parent does not appear at the pretrial conference, status conference or termination adjudication hearing, the court, after determining that the parent has been instructed as provided in section 8-535, may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear. The court may terminate the parent-child relationship as to a parent who does not appear based on the record and evidence presented as provided in rules prescribed by the supreme court.

§ 8-471. Office Of Child Welfare Investigations; Training; Responsibilities; Annual Report

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 2 - Criminal Conduct Allegation Investigations

§ 8-471. Office Of Child Welfare Investigations; Training; Responsibilities; Annual Report

8-471. Office of child welfare investigations; training; responsibilities; annual report

A. The director shall establish the office of child welfare investigations within the department. The director is responsible for the direction, operation and control of the office.

B. The duties of the office include investigating criminal conduct allegations, coordinating with other parts of the department and law enforcement, establishing task forces for the investigation of criminal conduct and other duties as may be assigned by the director.

C. The office shall employ child welfare investigators who have received training to understand law enforcement's role in cases of criminal child abuse or neglect and in social services offered by the department. The office may employ research analysts and peace officers for the purpose of obtaining an originating agency identification number to have direct access to criminal history report information. Each person hired by the office is an employee of the department, is subject to title 41, chapter 4, article 4 and shall comply with the fingerprint requirements of section 8-802.

D. The department, in coordination with the Arizona peace officer standards and training board, shall provide child welfare investigators with training. The training shall be, at a minimum, in the following areas:

1. First responder training on responding to reports of child abuse.

2. Forensic interviewing and processes.

3. Child physical and sexual abuse investigation.

4. The protocols established pursuant to section 8-817.

5. Relevant law enforcement procedures, including the collection and preservation of evidence.

6. A child's constitutional rights as a victim of a crime pursuant to article II, section 2.1, Constitution of Arizona.

7. Impact and intervention practices related to adverse childhood experiences, culturally and linguistically appropriate service delivery, domestic violence, family engagement, communication with special populations and trauma informed responses.

8. Any other training as directed by the director.

E. A child welfare investigator shall:

1. Protect children.

2. Assess, respond to or investigate all criminal conduct allegations, which shall be a priority, but not otherwise exercise the authority of a peace officer.

3. Not interview a child without the prior written consent of the parent, guardian or custodian of the child unless either:

(a) The child initiates contact with the investigator.

(b) The child who is interviewed is the subject of, is the sibling of or is living with the child who is the subject of an abuse or abandonment investigation pursuant to paragraph 4, subdivision (b) of this subsection.

(c) The interview is conducted pursuant to the terms of the protocols established pursuant to section 8-817.

4. After the receipt of any report or information pursuant to paragraph 2 of this subsection, immediately do both of the following:

(a) Notify the appropriate municipal or county law enforcement agency if they have not already been notified.

(b) Make a prompt and thorough investigation of the nature, extent and cause of any condition that would tend to support or refute the report of child abuse or neglect when investigating allegations pursuant to paragraph 2 of this subsection. A criminal conduct allegation shall be investigated with the appropriate municipal or county law enforcement agency according to the protocols established pursuant to section 8-817.

5. Take a child into temporary custody as provided in section 8-821. Law enforcement officers shall cooperate with the department to remove a child from the custody of the child's parents, guardian or custodian pursuant to section 8-821. A child welfare investigator who is responding to or investigating a report containing a criminal conduct allegation shall have the primary responsibility for making the decision whether to take a child into temporary custody.

6. Evaluate conditions created by the parents, guardian or custodian that would support or refute the allegation that the child should be adjudicated dependent. The investigator shall then determine whether any child is in need of child safety services.

7. Identify, promptly obtain and abide by court orders that restrict or deny custody, visitation or contact by a parent or other person in the home with the child and notify appropriate personnel within the department to preclude violations of a court order in the provision of any services.

8. On initial contact with the parent, guardian or custodian of a child who is the subject of an investigation pursuant to this section, provide the parent, guardian or custodian with the allegation received by the department. This paragraph does not require the department to disclose details or information that would compromise an ongoing criminal investigation.

9. Have access to all records and information of the department necessary to carry out this section.

F. Unless a dependency petition is filed, a child shall not remain in temporary custody for a period exceeding seventy-two hours, excluding Saturdays, Sundays and holidays. If a petition is not filed, the child shall be released to the child's parent, guardian or custodian.

G. In conducting an investigation pursuant to this section, if the investigator is made aware that an allegation of abuse or neglect may also have been made in another state, the investigator shall contact the appropriate agency in that state to attempt to determine the outcome of any investigation of that allegation.

H. The office of child welfare investigations shall submit a report by August 15 each year to the governor, the speaker of the house of representatives, the president of the senate and the secretary of state that includes the following information for the most recently completed fiscal year:

1. The number of DCS reports that involve criminal conduct allegations.

2. The number of joint investigations conducted pursuant to section 8-817.

3. For each case in which a joint investigation did not occur pursuant to section 8-817, the reasons why the joint investigation did not occur.

I. All records gathered or created by the department during an investigation conducted under this section are confidential and shall be protected and released as prescribed in sections 8-807 and 8-807.01, except the department shall not release records if the department determines that the release of these records may compromise an ongoing investigation.

J. Notwithstanding any other law, the office of child welfare investigations is not responsible for conducting the criminal investigation of a criminal conduct allegation.

§8-533 Petition; who may file

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 5 - Termination Of Parent-child Relationship

§ 8-533. Petition; Who May File; Grounds

8-533. Petition; who may file; grounds

A. Any person or agency that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, a foster parent, a physician, the department or a private licensed child welfare agency, may file a petition for the termination of the parent-child relationship alleging grounds contained in subsection B of this section.

B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court shall also consider the best interests of the child:

1. That the parent has abandoned the child.

2. That the parent has neglected or wilfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child.

3. That the parent is unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.

4. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which that parent was convicted is of such nature as to prove the unfitness of that parent to have future custody and control of the child, including murder of another child of the parent, manslaughter of another child of the parent or aiding or abetting or attempting, conspiring or soliciting to commit murder or manslaughter of another child of the parent, or if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.

5. That the potential father failed to file a paternity action within thirty days of completion of service of notice as prescribed in section 8-106, subsection G.

6. That the putative father failed to file a notice of claim of paternity as prescribed in section 8-106.01.

7. That the parents have relinquished their rights to a child to an agency or have consented to the adoption.

8. That the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services and that one of the following circumstances exists:

(a) The child has been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order or voluntary placement pursuant to section 8-806 and the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement.

(b) The child who is under three years of age has been in an out-of-home placement for a cumulative total period of six months or longer pursuant to court order and the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate in reunification services offered by the department.

(c) The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement pursuant to section 8-806, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.

9. That the identity of the parent is unknown and continues to be unknown following three months of diligent efforts to identify and locate the parent.

10. That the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.

11. That all of the following are true:

(a) The child was cared for in an out-of-home placement pursuant to court order.

(b) The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services.

(c) The child, pursuant to court order, was returned to the legal custody of the parent from whom the child had been removed.

(d) Within eighteen months after the child was returned, pursuant to court order, the child was removed from that parent's legal custody, the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency and the parent is currently unable to discharge parental responsibilities.

C. Evidence considered by the court pursuant to subsection B of this section shall include any substantiated allegations of abuse or neglect committed in another jurisdiction.

D. In considering the grounds for termination prescribed in subsection B, paragraph 8 or 11 of this section, the court shall consider the availability of reunification services to the parent and the participation of the parent in these services.

E. In considering the grounds for termination prescribed in subsection B, paragraph 8 of this section, the court shall not consider the first sixty days of the initial out-of-home placement pursuant to section 8-806 in the cumulative total period.

F. The failure of an alleged parent who is not the child's legal parent to take a test requested by the department or ordered by the court to determine if the person is the child's natural parent is prima facie evidence of abandonment unless good cause is shown by the alleged parent for that failure.

§8-503 Powers And Duties

§ 8-503. Powers And Duties

8-503. Powers and duties

A. The division shall:

1. Exercise supervision over all child welfare agencies.

2. Advise and cooperate with the governing boards of all child welfare agencies.

3. Assist the staffs of all child welfare agencies by giving advice on progressive methods and procedures of child care and improvement of services.

4. Establish rules, regulations and standards for:

(a) Licensing of child welfare agencies.

(b) Licensing of foster homes.

(c) Classifications of foster homes as:

(i) Receiving foster homes.

(ii) Regular foster homes.

(iii) Special classes of foster homes as are needed according to the types of problems involved.

(iv) Group foster homes.

(d) Certifying each foster home according to one or more of the categories prescribed in subdivision (c) of this paragraph.

(e) Initial and ongoing foster parent training programs.

(f) The method of approving foster parent training programs.

(g) Uniform amounts of payment for all foster homes according to certification. However, variations in uniform amounts of payments may be allowed for foster homes based on consideration of geographical location or age or mental or physical condition of a foster child.

(h) Renewal of licenses of child welfare agencies and foster homes.

(i) Form and content of investigations, reports and studies concerning disposition of children and foster home placement.

5. Establish a program of counseling and rehabilitation of parents whose children have been placed in foster homes.

6. Establish foster parent training programs or contract with other agencies, institutions or groups for the provision of such programs to foster parents. Foster parent training programs shall be established in at least the following areas:

(a) Initial and ongoing training as a foster parent for a regular or group foster home.

(b) Initial and ongoing training as a foster parent for a special foster home.

7. Regulate the importation and exportation of children.

8. In conjunction with the department of education and the department of juvenile corrections, develop and implement a uniform budget format to be submitted by licensed child welfare agencies. The budget format shall be developed in such a manner that, at a minimum, residential and educational instructional costs are separate and distinct budgetary items.

9. Establish as a goal that, at any given time, not more than fifty percent of the total number of children whose maintenance is subsidized by title IV, part E of the social security act, as amended, shall be in foster care in excess of twenty-four consecutive months. The division shall establish through regulations appropriate procedures to achieve the goal.

B. Except as provided in section 8-514.01, large group settings for children, group homes for children and child developmental homes that have one or more residents who are clients of the department with developmental disabilities shall be licensed pursuant to title 36, chapter 5.1, article 3. Rules, regulations and standards adopted pursuant to subsection A, paragraph 4 of this section shall not apply to group homes for children or child developmental homes licensed pursuant to title 36, chapter 5.1, article 3.

§8-812 Child Safety Expedited substance abuse treatment fund

§ 8-812. Child Safety Expedited Substance Abuse Treatment Fund

8-812. Child safety expedited substance abuse treatment fund

A. The child safety expedited substance abuse treatment fund is established consisting of monies appropriated by the legislature. The department shall administer the fund.

B. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

C. Monies in the fund shall be used to provide expedited substance abuse treatment to parents or guardians with a primary goal of facilitating family preservation or reunification, including, if necessary, services that maintain the family unit in a substance abuse treatment setting. Fund monies shall not be spent on behalf of a parent or guardian unless all of the following are true:

1. The parent or guardian is a party to a dependency action concerning a child of the parent or a child under the care of the guardian.

2. The parent or guardian is not eligible for benefits under title XIX of the social security act (P.L. 89-97; 79 Stat. 344) or private insurance, or the necessary substance abuse treatment service is not available under title XIX of the social security act or private insurance.

3. The case plan provides for the child to either remain with or return to the parent or guardian.

4. The treatment is necessary for the case plan to be accomplished.

D. The department shall give preference in using fund monies to pay for treatment for parents or guardians who are parties in cases that are part of any judicially or legislatively created program for expedited proceedings in dependency determinations.

E. The fund is the payor of last resort for treatment. Fund monies shall not be spent to pay for treatment if other monies are available to pay for the treatment. If it is determined after fund monies are spent to pay for treatment that other monies were available to pay for the treatment, the department may seek to have the fund reimbursed for the payment.

F. The department shall make the following information available to the public on request and on the department's website:

1. The number and percentage of parents and guardians who are offered treatment paid for with fund monies and who complete treatment.

2. The number of cases and children who are able to remain with or are returned to the custody of their parents or guardians as a result, in whole or in part, of treatment paid for with fund monies.

3. The number of children who receive expedited permanent placement as a result of the availability of services paid for with fund monies.

4. Data for cases that are part of expedited proceedings as described in subsection D of this section.

G. The department shall provide services pursuant to this section in collaboration with the department of health services.

H. A recipient of services that are paid for with fund monies shall sign a written statement that is substantially in the following form:

By signing this document, I indicate my understanding of the seriousness of my substance abuse problem and its effects on my ability to parent my child or children. I understand that this expedited substance abuse treatment program is paid for with monies that were specifically provided to speed the resolution of the case plan that may return the child or children to the parent. I acknowledge that successful completion of this treatment program will be a significant factor in my future relationship with my child or children, the state of Arizona and the department of child safety. I fully intend to complete the substance abuse treatment program as part of the case plan to obtain custody of my child or children.

§8-841 Dependency Petition

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 10 - Dependency Determination And Disposition

§ 8-841. Dependency Petition; Service; Preliminary Orders

8-841. Dependency petition; service; preliminary orders

A. Any interested party may file a petition to commence proceedings in the juvenile court alleging that a child is dependent.

B. The petition shall be verified and shall contain all of the following:

1. The name, age and address, if any, of the child on whose behalf the petition is brought.

2. The names and addresses, if known, of both parents and any guardian of the child.

3. A concise statement of the facts to support the conclusion that the child is dependent.

4. If the child was taken into temporary custody, the date and time the child was taken into custody.

5. A statement whether the child is subject to the Indian child welfare act of 1978 (P.L. 95-608; 92 Stat. 3069; 25 United States Code sections 1901 through 1963).

C. The person who files the petition shall have the petition and a notice served on:

1. The parents and any guardian of the child.

2. The child's guardian ad litem or attorney.

3. Any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement.

D. The notice shall contain all of the following:

1. The name and address of the person to whom the notice is directed.

2. The date, time and place of the hearing on the petition.

3. The name of the child on whose behalf the petition has been filed.

4. A statement that the parent or guardian and the child are entitled to have an attorney present at the hearing and that, if the parent or guardian is indigent and cannot afford an attorney and wants to be represented by an attorney, one will be provided.

5. A statement that the parent or guardian must be prepared to provide to the court at the initial dependency hearing the names, type of relationship and all available information necessary to locate persons related to the child or who have a significant relationship with the child.

6. A statement that the hearing may result in further proceedings for permanent guardianship or to terminate parental rights.

E. The petition and notice shall be served on a parent or guardian as soon as possible after the petition is filed and at least five days before the initial dependency hearing if the parent or guardian did not attend the preliminary protective hearing. If a parent or guardian does attend the preliminary protective hearing, the petition and notice shall be served at the preliminary protective hearing.

F. On the filing of the petition, the court may issue any temporary orders necessary to provide for the safety and welfare of the child.

Wednesday, January 18, 2017

§8-822 Removal of child from home rules and policies

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 9 - Removal Of Child

§ 8-822. Removal Of Child From Home; Rules And Policies; Approval; Defined
8-822. Removal of child from home; rules and policies; approval; definition-

A. The department shall adopt rules and establish clear policies and procedures, where appropriate, to:

1. Determine the circumstances under which it is appropriate to remove a child from the custody of the child's parents, guardian or custodian.

2. Ensure the immediate notification of the child's parents, guardian or custodian regarding the removal of the child from home, school or child care and the timely interview of the child and the child's parent, guardian or custodian.

B. The department shall apply its rules, policies and safety and risk assessment tools uniformly across this state.

C. Except as provided in subsection D of this section, the department may not remove a child from the custody of the child's parents, guardian or custodian unless both of the following occur before the removal:

1. The child safety worker who is recommending the removal submits the reasons for removal and supporting information to the worker's supervisor.

2. The worker's supervisor reviews the reasons and supporting information and approves the removal.

D. If an emergency exists affecting the health or safety of a child, a child safety worker may remove the child before notifying the worker's supervisor. The child safety worker shall submit the reasons for removal and supporting information to the worker's supervisor for the supervisor's review and approval within two hours after the removal of the child or, if the removal occurs after regular working hours, by 8:30 a.m. the next day.

E. For the purposes of this section, "supervisor" includes the permanent supervisor of a child safety worker and a temporary supervisor assigned to the child safety worker in the absence of the permanent supervisor.

8 Child Safety A.R.S. 8-501

8 - Child Safety

Ch. 4 - Department Of Child Safety

Art. 4 - Child Welfare And Placement

§ 8-501. Definitions

8-501. Definitions

A. In this article, unless the context otherwise requires:

1. "Child developmental certified home" means a regular foster home that is licensed pursuant to section 8-509 and that is certified by the department of economic security pursuant to section 36-593.01.

2. "Child welfare agency" or "agency":

(a) Means:

(i) Any agency or institution that is maintained by a person, firm, corporation, association or organization to receive children for care and maintenance or for twenty-four hour social, emotional or educational supervised care or who have been adjudicated as a delinquent or dependent child.

(ii) Any institution that provides care for unmarried mothers and their children.

(iii) Any agency that is maintained by this state, a political subdivision of this state or a person, firm, corporation, association or organization to place children or unmarried mothers in a foster home.

(b) Does not include state operated institutions or facilities, detention facilities for children established by law, health care institutions that are licensed by the department of health services pursuant to title 36, chapter 4 or private agencies that exclusively provide children with social enrichment or recreational opportunities and that do not use restrictive behavior management techniques.

3. "Division" or "department" means the department of child safety.

4. "Former dependent child" means a person who was previously adjudicated a dependent child in a dependency proceeding that has been dismissed by order of the juvenile court.

5. "Foster child" means a child placed in a foster home or child welfare agency.

6. "Foster home" means a home that is maintained by any individual or individuals having the care or control of minor children, other than those related to each other by blood or marriage, or related to such individuals, or who are legal wards of such individuals.

7. "Foster parent" means any individual or individuals maintaining a foster home.

8. "Group foster home" means a licensed regular or special foster home that is suitable for placement of more than five minor children but not more than ten minor children.

9. "Out-of-home placement" means the placing of a child in the custody of an individual or agency other than with the child's parent or legal guardian and includes placement in temporary custody pursuant to section 8-821, subsection A or B, voluntary placement pursuant to section 8-806 or placement due to dependency actions.

10. "Parent" means the natural or adoptive mother or father of a child.

11. "Reason for leaving care" means one of the following:

(a) Reunification with a parent or primary caretaker.

(b) Living with another relative.

(c) Adoption by a relative.

(d) Adoption by a foster parent.

(e) Adoption by another person.

(f) Age of majority.

(g) Guardianship by a relative.

(h) Guardianship by another person.

(i) Transfer to another agency.

(j) Runaway.

(k) Death.

12. "Receiving foster home" means a licensed foster home that is suitable for immediate placement of children when taken into custody or pending medical examination and court disposition.

13. "Regular foster home" means a licensed foster home that is suitable for placement of not more than five minor children.

14. "Relative" means a grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle or first cousin.

15. "Restrictive behavior management" means an intervention or procedure that attempts to guide, redirect, modify or manage behavior through the use of any of the following:

(a) Physical force to cause a child to comply with a directive. Physical force does not include physical escort. For the purposes of this subdivision, "physical escort" means temporarily touching or holding a child's hand, wrist, arm, shoulder or back to induce the child to walk to a safe location.

(b) A device, action or medication to restrict the movement or normal function of a child in order to control or change the child's behavior and that includes:

(i) Chemical restraint. For the purposes of this item, "chemical restraint" means the use of any psychoactive medication as a restraint to control the child's behavior or to restrict the child's freedom of movement and that is not a standard treatment for the child's medical or psychiatric condition.

(ii) Mechanical restraint. For the purposes of this item, "mechanical restraint" means the use of any physical device to limit a child's movement and to prevent the child from causing harm to self or to others. Mechanical restraint does not include devices such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets or any other method that involves the physical holding of a child to conduct a routine physical examination or test or to protect the child from falling out of bed or to permit the child to participate in activities in order to reduce the risk of physical harm to the child.

(iii) Physical restraint. For the purposes of this item, "physical restraint" means applying physical force to reduce or restrict a child's ability to freely move the child's arms, legs or head. Physical restraint does not include temporarily holding a child to permit the child to participate in activities of daily living if this holding does not involve the risk of physical harm to the child.

(iv) Seclusion. For the purposes of this item, "seclusion" means placing a child against the child's will in a room in which the child is unable to open the door in order to prevent the child from doing harm to self or others.

16. "Special foster home" means a licensed foster home that is capable of handling not more than five minor children who require special care for physical, mental or emotional reasons or who have been adjudicated delinquent. Special foster home includes any home handling foster children aged twelve through seventeen.

B. A foster home or any classification of foster home defined in subsection A of this section includes a home having the care of persons who are under twenty-one years of age and the cost of whose care is provided pursuant to section 8-521.01.

ARS 8 501,what every parent should know, jessica lynn hepner

Saturday, January 14, 2017

The Basics of Washington State Child Custody Laws

If you have one or more children and are getting a divorce in Washington State, custody laws are something you’ll want to understand. Divorce can be an emotional and uncertain time for you. You’ll want to know what to expect.

Washington State child custody laws do not use the terms custody and visitation. Instead, they refer to a parenting plan. A parenting plan should cover:

Where the kids will live and with which parent
How the parents will make decisions regarding the children
How future disputes between the divorcing parents will be resolved

Judges prefer that the parents – often with the help of their Washington State child custody lawyers – come up with a parenting plan with which they both can agree. Often, if the parents come up with a solution of their own, the judges will sign off on it.

If, however, the parents cannot agree to a parenting plan, they will go to trial, and the judge will decide the matter for them. The judge’s decision will be final.
Washington State Custody Laws

Under Washington State child custody laws, judges who sign off on a couple’s divorce must consider the best interests of the child as the guiding principle in deciding custody issues. Even if both parents agree to a custody arrangement, the judge will review it and make sure it is in the children’s best interests.

In determining what is in the best interests of the children, the judge will look at each parent’s ability to:

Maintain a loving, stable relationship with the children
Provide for the children’s basic needs, such as feeding, clothing, physical health, grooming, health care, day care, etc.
Be involved with the educational needs of the children
Exercise sound judgment
Financially support the children

How a Washington State Parenting Plan Takes Shape – Where the Children Will Live

In deciding with which parent the children should live, the judge will ask each parent to come up with a schedule which will include where the children will be during the weekdays, weekends, holidays, birthdays and vacations. The plans must be specific and include transportation arrangements. In other words, how will the children get to where they need to be?

In approving the plan, the judge will decide whether it provides the most loving and stable relationship between the children and each parent. The judge is likely to grant more time with the parent who was seeing to the daily needs of the children before the parents filed a petition for divorce or dissolution of marriage.

Among the factors a Washington State judge may consider when deciding child custody arrangements are:

How good of a parent each divorcing spouse was during the marriage
The relationships the children have with siblings and other adults in their lives
How involved the children are in their community, such as in school, church and extra-curricular activities
The wishes of the children, if they are old enough to express those wishes in reasonable detail

How Future Decisions Will be Made

Some important decisions that parents have to make include those about the children’s education, health care and religious upbringing. Divorcing parents should discuss how these decisions will be made in the future after the divorce is finalized.

Their plan could include joint decision-making, alternate decision-making for various topics or leaving the responsibility up to just one of the parents.

In approving a plan – or deciding one for a divorcing couple who can’t come up with one on their own – a judge may consider:

Which parent has made most of the decisions in the past
How cooperative the parents can be in the future
How far away the parents will be living from each other

Even if only one parent is granted the authority to decide how to raise the children, when the children are staying with the other parent, that parent will have the ability to make the day-to-day decisions for the children. Both parents would have the ability to make decisions in an emergency involving the children.
How to Resolve Disputes Going Forward

A parenting plan will include a process for resolving disputes if the parents cannot resolve them themselves simply by talking them over. In creating the parenting plan, the parents can outline the process, including any specific third-parties, such as counselors or a mediator, that may be consulted to help resolve the situation.

This same resolution process can also be used to alter the parenting plan as the needs of the adults and children change after the divorce.

If the parents still cannot agree, a plan may allow them to take their dispute to arbitration, where both sides will present their sides and a neutral, third-party arbitrator would decide the matter for them. In fact, under Washington State child custody laws, parents cannot go back to court to resolve a contentious matter until they have tried an alternative dispute resolution effort such as arbitration.
Enforcing the Parenting Plan

If one parent does not live up to the parenting plan’s arrangements, the other parent may have to return to court. The violating parent faces paying the attorneys costs, a fine and even imprisonment, if the violation is severe enough.

The non-violating parent must continue to provide for their children’s needs while he is trying to enforce the parenting plan.

Custody issues as outlined in the parenting plan are completely separate from child support arrangements. Whether you are in Aberdeen or Bellevue or any other city in Washington State, parents cannot withhold child support as a way of enforcement. In other words, you cannot stop your ex-spouse from seeing the children if he has stopped making child support payments. Conversely, you cannot withhold child support payments if you have been denied access to the children.

In these instances, you must follow the steps for resolving disputes as laid out in your parenting plan. If that doesn’t work, you’ll need to return to court. Ask your Washington State child custody lawyer for more details.


http://www.attorneys.com/child-custody/washington/washington-state-child-custody-laws-basics

Parental Rights and Responsibilities in Washington

Your Rights and Responsibilities

Have you learned your child is involved in a court case because of suspected abuse or neglect? This information helps you understand your rights and responsibilities. Even if you weren't your child's caretaker, or don't see your child often, there are many things you and your relatives can do to ensure your child is safe and returns to live with family quickly.
Why this is important

Your child's court case will move fast. Important decisions will be made early about:

Where your child will live
What services your child needs
Who your child gets to visit or contact

You must know how to help your child through this process and protect your rights to your child.
When you will need this information

Use it to help you recall your rights and responsibilities in the court process
Review or take it with you to each court hearing or meeting

Your Rights

As a parent, you have rights in child welfare court cases. If you are the child's legal father, you have the same rights as your child's mother, including the right to:

Notice - advance notice of all court hearings.
Contest allegations - a chance to admit or deny any allegations of abuse or neglect that are made against you.
Court participation - an opportunity to attend, participate, and be heard in all court hearings. Assistance should be available so your participation can be meaningful, such as an interpreter if you do not understand English or are hearing-impaired.
Representation - a lawyer to protect your legal interests. (Note: In some states you may have to hire your own lawyer and in others you may be able to get one for free if you don't have a lot of money. If the government seeks to terminate your rights to your child, most states will give you a lawyer for free if you can't afford one.)
A fair trial - the judge makes final decisions. You have a right to a judge who is not biased.
A relationship with your child - a right to ongoing contact with your child unless the court or agency finds it is not in your child's best interest or may harm him or her. You also have the right to ask for custody of your child. Your state may give you more rights. Check with your attorney or caseworker to see what other rights you may have.

Protect your rights. Sometimes you have to fight for your rights.
Getting Legal Help

If you have a lawyer

Ask your lawyer to explain how you can protect your rights.

If you don't have a lawyer

Ask the court for a lawyer.
Contact your local legal aid office to ask about hiring a low-cost or free lawyer depending on your income.
Find out if the court has a help center that can provide information and advice.
Ask if the agency or court has a handbook for parents or other information about child welfare law in your state.
Look online for free information on your state's child welfare laws and parents' rights.

Protecting Your Rights

If you think your rights are not being protected

Tell the judge at the next court hearing and request an order requiring the agency or other parties to protect them.

If you think the judge is not being neutral because you know him or her from a previous association

Contact the administrative offices of the court to find out how or if you can switch judges.

Exercise your rights

If you are given these rights, use them to your advantage. For example:

When you are notified of future court hearings be sure to prepare for every hearing in advance
When you are appointed a lawyer be sure to contact your lawyer regularly and be sure your lawyer tells the court and parties what you want
When you are permitted to see your child be sure to visit your child as much as you can
When you are unable to attend or be on time be sure to contact your lawyer or caseworker for a meeting or hearing as soon as possible to let them know

Your Responsibilities

In the end, this is not a battle between you and the judge, caseworker, or other parent. It is about your child's future and well-being.
Your Duties Outside Court

Contact your lawyer often.
Why: Your lawyer can help you understand the court process and will advocate for what you want.
What to do

Let your lawyer know how things are going with you and your child. This will help him or her stand up for your rights and advocate for you at each court hearing and meeting.
If your phone number or address changes, let your lawyer know immediately.
Always leave the number where you can be reached so your lawyer can contact you quickly.
If your lawyer does not respond, call again or send a letter.

Keep in touch with the caseworker.
Why: So you know what is expected of you.
What to do

If your phone number or address changes, tell the caseworker immediately.
If you have issues to discuss or are unclear about what the caseworker expects, always call. Don't assume he or she will contact you if there is a problem.
By calling and being involved, you show the caseworker you are committed to your child and the case.
Call again or write if you get no response and leave a message and/or follow up with an e-mail as evidence of your contact.
If you still do not hear back, contact the caseworker's supervisor.

Complete your case plan tasks.
Why: The caseworker may give you a list of tasks the agency wants you to do to gain custody or stay involved in your child's life. This list is part of your case plan and includes services the agency thinks you need. The agency should develop this plan with you and your lawyer.
What to do

Read the plan with your lawyer and make sure you understand it and can do everything it says. If not, ask that it be changed.
Work with your attorney or caseworker to make sure the agency pays for the services you need, or helps you find free or low-cost services.
Once the case plan is final, you must complete all tasks required of you. If you don't, you might not be allowed to see or take custody of your child.

Your Responsibilities to the Court

Attend all court hearings and meetings.
Why: It ensures you have a say when important decisions are made about you and your child's future. Plus, the judge and caseworker will see you are interested in your child.
What to do

If you can't go to a meeting or court hearing, always tell your lawyer or caseworker in advance.
Ask if you can participate by phone or if the hearing or meeting can be rescheduled.

Obey all court orders.
Why: The judge and caseworker expect you to follow the court's orders. If you don't, you could lose the chance to visit or reunify with your child.
What to do

If the court orders you to do something that does not make sense in your situation, or you cannot because of money or transportation barriers, tell your lawyer or the caseworker immediately!
Don't let the court give an order without finding out if you can do what the order says. Sharing your concerns may change the judge's mind.
Make your argument before the court makes its final decision. Once the judge decides, you must follow his or her orders or the judge could stop you from seeing your child.

Your Responsibilities to Your Child

Contact and visit your child often.
Why: Your child needs your support during the court process. If the court allows, call and/or visit your child as often as he or she is available. Your child may be confused and scared about what has happened. If in foster care, your child may feel disconnected from family and familiar things. Regular contact can help get your child through this difficult time.
What to do

If it makes you more comfortable during visits, ask the caseworker if your wife or significant other, parents, or relatives can join you on visits.
Be consistent with your visits, always be on time, and don't miss any.
If something comes up, tell the child and caseworker in advance that you have to reschedule. It can upset the child if you don't show up. If you don't visit or miss some visits, the court and agency may believe you aren't interested in your child's life.

Consider requesting custody of your child.
Why: Even if you haven't been your child's primary caretaker, you have a right to ask for custody of your child. If you were not the reason your child entered the court system, some courts will let you take custody of your child quickly.
What to do

If you are unsure if you want custody, or what it would involve, speak with your lawyer, caseworker, and family about it.

Ask relatives how they can support your child.
Why: Parents, sisters, brothers, aunts, uncles and other relatives may be interested in visiting, sending gifts, calling the child, hosting the child during holidays, or taking custody of the child if you cannot. Being with family is usually better than being in a stranger's foster home.
What to do

Ask family members how they can help.
Share information about relatives with your lawyer and caseworker.

Be the best parent you can be.
Why: Your child needs you now, maybe more than ever.
What to do

Keep in touch with your child's caseworker.
See your child often and participate in all court-ordered services.
Services may require that you be drug free, find housing, or get a job. Your caseworker and lawyer should help you achieve these goals.

Adapted for Washington State use from the American Humane Association's, Fatherhood Toolkit
Additional Resources

Understanding the Dependency Court Process (DSHS 22-1499)

Including Fathers - Video by University of Washington

The Importance of Fathers in the Healthy Development of Children - U.S. Dept. of Health & Human Services

Review this information before you attend a court hearing or meeting. This information provides general information, not legal advice. If you have case-specific or legal questions, ask your lawyer or caseworker.

https://www.dshs.wa.gov/ca/parent-resources/your-rights-and-responsibilities