Arizona courts craft rule on when DCS can remove children from homes

A new requirement that state workers get a judge's permission before taking children away from their parents could be a landmark shift in Arizona's child-welfare system — or not, depending on how a new system is set up.

Arizona's courts, which have until next year to put that system in place, have drafted a new rule for those warrants. The draft rule spells out for the first time what a child-welfare worker would have to prove before taking away a child.

Proponents of the new requirement believe it will reduce the number of cases in which the Department of Child Safety takes a child away from his or her parents.

Others in the child-welfare field believe a new rule will have minimal impact.

That's because the legislation requiring a warrant provides an out for so-called exigent circumstances: instances where the caseworker believes the child could be harmed in the time it would take to get a court order.

The idea of requiring a warrant before removing a child became a hot topic as the number of Arizona children in state custody peaked at nearly 19,000 early last year.  Critics repeatedly noted the Fourth Amendment to the U.S. Constitution bans warrantless removals, although there is an exception for emergency situations.

DCS removed 5,236 children in the six-month period that ended March 31, according to the agency's most recent report.

Now, the court system is weighing public comment on the new rule that might — or might not — throw the brakes on those removals.

How the system would work

 

Under the proposed rule, child-welfare workers who want to remove a child from a home must submit a written application to court, or make a recorded statement, under oath, seeking removal.

The application must include specific details, including:

• The particular reason why they believe each child is "presently or imminently in danger of abuse or neglect."
• Facts that detail the circumstances in the home that would require a removal.
• The availability (or lack of) services that "would remove or control the danger."
• The name and description of each child.

The rule comes at the direction of the state Legislature. A bill passed in the final hours of this year's legislative session requires the juvenile court by next year to sign off on any request from the state Department of Child Safety to take a child out of the home for alleged neglect or abuse. Those decisions have always been left to state workers.

But the law doesn't specify how the court handles that process. That's why the court has drafted the rule and put it up for public comment.

Comments are open until Oct. 27. The ultimate rule, whatever form it takes, will take effect July 1.

A good start?

DeeAn Gillespie Strub, an attorney who works with families, said she was heartened after a quick glance at the proposal.

"This is an important first step," she said.

As she reads it, Gillespie said she believes the new rule will reduce the number of child removals because it will require caseworkers to think twice about their decision and articulate it to a judge.

"If they (DCS) have to go to court, this is a speed bump that gives them a cooling-off period," she said.

REPORT: Real progress at Arizona DCS, but 'a long way to go'

Rep. Kelly Townsend pushed for the warrant language and got it added to a bill as the Legislature was drawing to a close in May. The Mesa Republican said the proposed court rule is a good start, but added it's important to have a clear definition of "exigency" and when it would be invoked.

The court noted in a background memo accompanying the proposed rule that it does not believe it has the responsibility of deciding when exigent circumstances exist. 

Which means the rule, however sweeping, might have little effect. If child-welfare workers say a case is exigent, they won't file for a warrant at all. Ultimately, a ruling on how they make that decision may have to come from the Legislature itself. 

DUI warrants as a model

The warrant process is being modeled after Maricopa County's Initial Appearance Court, where police officers can file an electronic request and a commissioner can respond quickly. It is widely used for warrants to allow DUI tests. Currently, police are getting warrants within 15 minutes, said David Byers, director of the Administrative Office of the Courts.

He predicted a similar process for child removals will reduce the number of times DCS decides on its own to take a child, since access won't be slowed by a drive across town or, in the case of rural Arizona, a drive of several hours. With electronic filing and 24/7 access, caseworkers could get a court decision quickly, Byers said, reducing the circumstances when a caseworker might feel it imperative to take the child for fear the child would be in danger while waiting to get to court.

MORE: A horrifying journey through Arizona foster care

Starting July 1, all requests for temporary custody orders will be run through Maricopa County, where the court will have commissioners on staff to handle calls 24/7 from caseworkers in all 15 counties. DCS says all of its field workers are now equipped with tablets so the communication can be electronic.

The court got state funding to add 1½ commissioner positions and training will begin in the spring, Byers said. In all, the program will cost $315,800 a year.

The courts and DCS prefer to call the new process a "temporary custody order," saying warrants refer to property and it's insensitive to lump children into the same category.  

Removal process already under fire

An ongoing federal lawsuit is challenging the state's practice of removing children without a court order. Attorneys in the case Pellerin vs. Wagner in July filed a petition for a preliminary injunction to stop the practice.

Ken Pellerin, whose four grandchildren are at the heart of the dispute, questions why the state is not moving immediately on the policy shift. The Fourth Amendment bars warrantless seizures, the legal argument that is key to the Pellerin claim against the state.

"What they're doing is wrong, and they know it is not right," Pellerin said of DCS. "They're ruining families."

His grandchildren, he said, will never be the same after being removed from their parents in 2013. The family is intact now, but the paranoia of being seized again haunts them, he said.

The full rule, and instructions on how to comment, are on the court's website at www.azcourts.gov/Rules-Forum/aft/748.

About this report

In 2016, when the number of children removed from their families peaked at over 18,000, the Arizona Community Foundation gave The Arizona Republic and azcentral.com a three-year grant to support in-depth research on the topic. As part of that effort, reporter 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.

Under the proposed rule, child-welfare workers who want to remove a child from a home must submit a written application to court, or make a recorded statement, under oath, seeking removal.

The application must include specific details, including:

• The particular reason why they believe each child is "presently or imminently in danger of abuse or neglect."
• Facts that detail the circumstances in the home that would require a removal.
• The availability (or lack of) services that "would remove or control the danger."
• The name and description of each child.

The rule comes at the direction of the state Legislature. A bill passed in the final hours of this year's legislative session requires the juvenile court by next year to sign off on any request from the state Department of Child Safety to take a child out of the home for alleged neglect or abuse. Those decisions have always been left to state workers.

But the law doesn't specify how the court handles that process. That's why the court has drafted the rule and put it up for public comment.

Comments are open until Oct. 27. The ultimate rule, whatever form it takes, will take effect July 1.

A good start?

DeeAn Gillespie Strub, an attorney who works with families, said she was heartened after a quick glance at the proposal.

"This is an important first step," she said.

As she reads it, Gillespie said she believes the new rule will reduce the number of child removals because it will require caseworkers to think twice about their decision and articulate it to a judge.

"If they (DCS) have to go to court, this is a speed bump that gives them a cooling-off period," she said.

REPORT: Real progress at Arizona DCS, but 'a long way to go'

Rep. Kelly Townsend pushed for the warrant language and got it added to a bill as the Legislature was drawing to a close in May. The Mesa Republican said the proposed court rule is a good start, but added it's important to have a clear definition of "exigency" and when it would be invoked.

The court noted in a background memo accompanying the proposed rule that it does not believe it has the responsibility of deciding when exigent circumstances exist. 

Which means the rule, however sweeping, might have little effect. If child-welfare workers say a case is exigent, they won't file for a warrant at all. Ultimately, a ruling on how they make that decision may have to come from the Legislature itself. 

DUI warrants as a model

The warrant process is being modeled after Maricopa County's Initial Appearance Court, where police officers can file an electronic request and a commissioner can respond quickly. It is widely used for warrants to allow DUI tests. Currently, police are getting warrants within 15 minutes, said David Byers, director of the Administrative Office of the Courts.

He predicted a similar process for child removals will reduce the number of times DCS decides on its own to take a child, since access won't be slowed by a drive across town or, in the case of rural Arizona, a drive of several hours. With electronic filing and 24/7 access, caseworkers could get a court decision quickly, Byers said, reducing the circumstances when a caseworker might feel it imperative to take the child for fear the child would be in danger while waiting to get to court.

MORE: A horrifying journey through Arizona foster care

Starting July 1, all requests for temporary custody orders will be run through Maricopa County, where the court will have commissioners on staff to handle calls 24/7 from caseworkers in all 15 counties. DCS says all of its field workers are now equipped with tablets so the communication can be electronic.

The court got state funding to add 1½ commissioner positions and training will begin in the spring, Byers said. In all, the program will cost $315,800 a year.

The courts and DCS prefer to call the new process a "temporary custody order," saying warrants refer to property and it's insensitive to lump children into the same category.  

Removal process already under fire

An ongoing federal lawsuit is challenging the state's practice of removing children without a court order. Attorneys in the case Pellerin vs. Wagner in July filed a petition for a preliminary injunction to stop the practice.

Ken Pellerin, whose four grandchildren are at the heart of the dispute, questions why the state is not moving immediately on the policy shift. The Fourth Amendment bars warrantless seizures, the legal argument that is key to the Pellerin claim against the state.

"What they're doing is wrong, and they know it is not right," Pellerin said of DCS. "They're ruining families."

His grandchildren, he said, will never be the same after being removed from their parents in 2013. The family is intact now, but the paranoia of being seized again haunts them, he said.

The full rule, and instructions on how to comment, are on the court's website at www.azcourts.gov/Rules-Forum/aft/748.

About this report

In 2016, when the number of children removed from their families peaked at over 18,000, the Arizona Community Foundation gave The Arizona Republic and azcentral.com a three-year grant to support in-depth research on the topic. As part of that effort, reporter 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.

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