PHOENIX – After police officers busted down the door of an Arizona home to take a toddler with a spiking fever from his parents, advocates and a state legislator are questioning if a new law intended to protect families’ rights is failing.
Officers pointing guns forced their way into the family’s home in the middle of the night last month after the Arizona Department of Child Safety called the police for a welfare check on a child with a 100 degree-plus fever and no vaccinations.
The parents had ignored a doctor’s recommendation to take their 2-year-old to the hospital, saying their son’s fever had decreased.
Rep. Kelly Townsend, R-Mesa, who helped craft legislation requiring DCS to obtain a warrant before removing a child from their parents or guardians in non-emergency circumstances, said she was outraged by the response of police and DCS officials in the case.
“It was not the intent (of the law) that the level of force after obtaining a warrant was to bring in a SWAT team,” Townsend said. “The imagery is horrifying. What has our country become that we can tear down the doorway of a family who has a child with a high fever that disagrees with their doctor?”
DCS officials did not respond to The Arizona Republic’s questions about their policies for child welfare checks and warrants, or whether their handling of this family’s case was in line with those policies.
Townsend said she wants lawmakers to review warrant procedures that led to police using force, left a family traumatized and placed three children in state custody. The fact that DCS obtained a court-approved warrant shows this wasn’t an emergency that threatened the child’s life or safety so there wasn’t time to file with the court, she said.
Child welfare workers used to be able to remove children without warrants. But under a law that took effect in July Arizona lawmakers designated limited circumstances for removing a child from their parent without a warrant: DCS must have probable cause to believe a child is at imminent risk of harm and there’s no less-intrusive alternative to removal or DCS must have probable cause to believe a child is a victim of sexual or physical abuse that can only be evaluated by trained medical personnel.
The case has made its way to a juvenile courtroom and sparked conversation over the balance between parental rights to care for their children versus the power of DCS and doctors.
It could take months of hearings and DCS-mandated instructions before the parents regain custody of their children. Or maybe they never will.
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A fever, a doctor’s order, a parent’s right to choose medical care for their child
It started with a visit to the doctor for a fever.
On February 25, the mother took her 2-year-old boy to the Southwest College of Naturopathic Medicine clinic in Tempe, according to Chandler police records.
It was dinner time. But the toddler’s fever had spiked to over 100 degrees.
The doctor asked if the child had his vaccinations.
The mother said no.
Concerned that a lethargic child with a fever and lacking vaccinations could have meningitis, the doctor instructed the mother to take the child to the emergency department at Banner Cardon Children’s Medical Center in Mesa, according to attorneys at a March 7 court hearing following the removal of the children.
The Republic knows the names of the parents and child but it does not typically identify children in the child welfare system.
The doctor contacted Banner physicians who recommended the child be “taken to the emergency room as soon as possible,” according to police records. The doctor told the mother that meningitis can be life-threatening and said the hospital would contact her when the mother arrived.
After they left the doctor’s office, the child was laughing and playing with his siblings. The mother took the child’s temperature again. It was near normal.
Shortly after 6:30 p.m., the mother called the doctor and told her that her toddler no longer had a fever so she wasn’t taking him to the emergency room.
The mother also said she was worried about getting in trouble with DCS because her child did not have vaccinations.
The doctor said the mother would not get in trouble. The mother again agreed to take her child to the hospital, according to police records.
In Arizona, a parent may decline vaccinations for their child based on personal, religious or medical exemptions.
About three hours later, the hospital contacted the doctor to advise her that the child had not shown up and the mother wasn’t answering her phone, according to police records. The doctor contacted DCS.
A DCS caseworker called Chandler Police and “requested officers to check the welfare of a two year old infant,” according to police records. A caseworker said he was on his way to the house.
Officers with ‘lethal coverage’ kick down door, enter home with DCS worker
It was about 10:30 p.m. when two police officers knocked on the family’s door. The officers heard someone coughing.
Officer Tyler Cascio wrote in a police report that he knocked on the door several times but no one answered.
A neighbor approached the officers and police explained the situation. The woman said she knew her neighbor and that “she was a good mother.” At the request of officers, the neighbor called the mother and said police wanted to speak with her.
The DCS caseworker arrived and updated police on the toddler’s fever and the mother choosing not to take her child to the hospital. The officer called the family’s doctor, who repeated her recommendation that the mother take the child to the hospital.
Police dispatch told the officers that a man at the home had called requesting that they call him. They called, and the man identified himself as the sick boy’sfather.
The officer said they told the father they needed to enter the home for DCS to check on the child. The father refused, explaining that his son’s “fever broke and he was fine,” according to police records.
Officers tried to call the parents again, but no one answered. They told the caseworker the parents refused to open their door.
At about 11:30 p.m., the caseworker informed officers that DCS planned to obtain a “temporary custody notice” from a judge to remove the child for emergency medical aid.
The caseworker “advised they obtained a court order for temporary custody in order to take (redacted) to the hospital.” The order was signed at 12:04 a.m. by Judge Tracy Nadzieja, according to police records.
Cascio wrote that officers consulted with the police criminal investigations bureau and SWAT.
“Based upon the court order, the intent of DCS to serve the order, and exigency to ensure the health and welfare of the child, the decision was made to force entry to the home if the parents refused to respond to verbal requests,” according to police records. Police knocked, saying they had a court order and would force entry if needed, according to police records.
The Republic has requested the police-worn body-camera footage.
It was after 1 a.m. when officers kicked down the family’s door. One officer carried a shield, while another was described as having “lethal coverage.” Officers pointing guns yelled, “Chandler Police Department,” and entered the house.
The father came to the door. Officers placed him in handcuffs and took him and the mother outside. Inside, they found a juvenile who said she was sick and had thrown up in her bed.
Officers said the home was “messy” with clothing piles and concrete floors. In the parent’s room, a shotgun lay next to the bed, according to police records.
The caseworker spoke with two of the children without their parents present. He told officers it was “necessary to obtain a temporary custody order” for the parents’ two other children, according to police records.
Since there was no “criminal incident” and because the mother refused, no photos were taken inside the home, according to the police records.
Neither of the parents was arrested.
Officials took the parents’ three children to Banner Cardon Medical Center.
Inside a Mesa courtroom, the parents fight for their children to be returned
At a Mesa juvenile court hearing 10 days later, the parents got their first chance before a judge to fight for their children to be returned.
Each parent had an attorney. The parents had raised a family together but weren’t legally married.
The father’s parents sat on a bench next to a friend of the mother. Lori Ford and Christina Lawler, family advocates with a group calling themselves the Arizona DCS Oversight Group, sat quietly listening and taking notes. Townsend, the state lawmaker, sat near the grandparents. She wanted to see whether the family’s rights had been violated.
A lawyer for the state Attorney General’s Office, representing DCS, asked the judge to close the hearing to the public. The attorney said members of the news media were in the courtroom and the family had spoken with the media about the case, which he said wasn’t in the best interest of the children.
Attorneys for the parents said they hadn’t known of any restrictions on them speaking with media.
Judge Jennifer Green denied the request to close the hearing but warned everyone that they could be held in contempt of court if they revealed personally-identifiable information about the children or any others mentioned in the hearing.
Attorneys for the parents said the parents had only had one visit with their older children. DCS officials told the parents the toddler couldn’t make that visit because he was at a medical appointment.
The state’s attorney argued that the children shouldn’t be returned to their parents yet because they’d been hostile to DCS workers and weren’t cooperating. He said the parents had attended a DCS visit with members of Arizona DCS Oversight Group who were combative toward DCS workers. He said the grandfather had tried to videotape a meeting with DCS, and recording is not allowed to protect the privacy of the children.
DCS wanted the parents to undergo psychological evaluations.
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Attorneys for the parents argued such evaluations were for people who had a history of mental health issues, which neither parent had. They said the parents weren’t hostile, but they were living a nightmare that started with a child’s fever. They were woken up in the middle of the night, police busted down their door, brandishing guns and their three children were taken from them, attorneys said. The grandfather did what most people would think they had the right to do – record government officials.
The father had agreed to drug testing and the grandparents had agreed to background checks in hopes of becoming temporary caretakers for their grandchildren. Everyone was cooperating, the father’s attorney said.
A court-appointed guardian ad litem, who’s assigned to look after the best interests of the children, said he had one primary concern: Each child was still in a separate foster-care placement. Not only were the children separated from their parents, but this was also the first time they’d been separated from each other.
The judge asked the parties to attend an expedited hearing that afternoon.
After the hearing, in the courthouse hallway, the father held the mother in his arms. She cried and rested her hand on her pregnant belly.
Townsend spoke with the father about the road to getting his kids back.
“Why do they make it so hard?” he said with tears in his eyes. She tried to comfort him.
A lawmaker discusses parental rights
Outside the courthouse, Townsend said she didn’t know the parents personally but was disturbed by the case.
“It was brought to my attention that these parents may have been targeted by the medical community because they hadn’t vaccinated their children,” she said.
Townsend said parents who don’t vaccinate their children because of medical concerns aren’t criminals. She worried physicians were using it as a reason to refer parents to DCS.
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“I think if DCS decides to use this as a factor they would be violating a parent’s right to have a personal exemption, a religious exemption and perhaps a medical exemption,” she said.
Townsend said the hearing opened her eyes to issues she will raise with fellow lawmakers. She questioned why the state’s attorney and DCS used the parent’s frustration with DCS to label the family as hostile and argue they weren’t cooperating with DCS.
“It doesn’t say anywhere that after your kids are taken, after police bust down your door, that you have to be nice to DCS to get your kids back,” she said.
A judge decides a family’s future
It was just before 2 p.m. when the parents walked back into the courtroom.
A DCS investigator, a former police officer, took the stand. She said upon visiting the hospital, doctors found the toddler had RSV, a respiratory virus that can cause serious illness in young children. She said the parents weren’t complying with DCS’ request to provide medical records for the children. She said they also weren’t following steps to regain custody of their children.
One of the parent’s attorneys asked the DCS investigator to outline specific steps the parents must follow to get their children back. The caseworker said she couldn’t remember any of them.
Attorneys for the parents claimed DCS was angry at the parents for speaking with the media and as retribution DCS officials were making it more difficult for the family to regain custody of their children. They said the child’s fever had gone down, as evidenced in medical reports.
The judge asked what was delaying placing three children with their grandparents. The state’s attorney said the grandparents still needed a home safety check.
Green asked if that check could be expedited. The state’s attorney said DCS contracts with a company to conduct safety reviews and has no control over timelines but that it could take up to 30 days.
The guardian ad litem, representing the best interest of the children, told the judge he didn’t see why the children couldn’t be cared for by their grandparents while their parents worked with DCS to regain custody.
The judge said the removal was warranted, citing the mother’s refusal to follow the doctor’s orders. She said records showed the family had a history of domestic violence, noting an incident in which the father punched a wall.
She approved psychological evaluations for both parents, saying it would help identify the best services for the parents. She ordered DCS to complete a safety check of the grandparents’ home within four days. And she ordered the father to continue drug and alcohol testing.
She reminded the grandparents and parents that they were no longer in control of the children’s medical and health decisions. If a doctor orders treatment, the family must follow those directions, she said.
Then, she told the parents to remember that the state had them on a family reunification plan and wants them to regain custody of their children.
After they left the courtroom, father and mother, both in tears, embraced.
The parents declined an interview with The Republic. They said they were afraid saying anything might upset DCS officials and hurt their efforts to regain custody of their children.
Ford, with the DCS watchdog group, said this is how it goes.
“They (DCS) had no right to bust into this family’s home and take their kids,” she said in the courthouse parking lot. “But now, “Now, they (DCS) have control of this family,” she said. “These children are traumatized, and all over a fever that wasn’t even a fever anymore when they went the hospital—just like the parents had said.”
She was upset with Townsend and other Arizona lawmakers who talk about holding DCS accountable but never do. Meanwhile, children and their families suffer, she said.
“They hold the purse strings, if they wanted to force DCS to make changes that would protect family’s rights they’d stop funding them,” she said.
Townsend hopes this case is an outlier, but the only way to know for sure is to review DCS child-welfare check policies, medical providers’ power over families and the DCS warrant process for removing children.
This case is more than enough reason to be concerned, she said.
“The fact that they got the warrant shows it wasn’t a matter of exigency by definition — it wasn’t something that they were rescuing this child from imminent death,” she said. “The expectation of child welfare is we’re thinking about the children in the family. We’re not talking cartels holding someone who’s been kidnapped, we’re not talking about a drug bust, we’re not talking about a flight risk. We’re not talking about any of that. This was a family with a child who has a fever. … We used a SWAT team on a family with a child with a high fever,” she said.
The parents say they wonder if they’ll be a family again: ‘We love our children’
On March 15, the father told The Republic that DCS had placed their three children with his parents.
“We get to see them again,” he said. “Thank God.”
He still can’t shake the night police kicked down their door and entered his home with guns drawn. He still can’t believe they took all three of their children.
He said he has asked DCS why the caseworker never presented himself and showed a warrant for removal, but he hasn’t received a clear answer.
“I know people have the right not to let the police into their home,” he said. “But if the caseworker had called me or knocked, and shown me their warrant, I would’ve let them in.”
He said home security video showed police had stated they had a DCS warrant for removal, but the family didn’t hear them because they were sleeping in the back bedrooms with their sick children.
The judge’s approval of DCS’ request for psychological evaluations has created another barrier to regaining custody of their children, he said.
The wait for an evaluation is months, he said.
The father sent The Republic a statement. His family is scared, he said, but they feel compelled to warn other families:
We have been through a very traumatic experience with our encounter with DCS. We would like other parents out there to know and realize the amount of power DCS has over the welfare of your children. Even though we remain confident in our innocence through our case, it is immediately an uphill struggle of what to do or not to do. Even if you do not agree with them or the process in which they follow. We thought they did not have the right to check on our children because they were getting better, from what they last heard about from us. We were in our home tending to our sick kids and did not want to be bothered in this tough time of illness. With multiple children it is difficult to keep up their needs while they are ill, and to be bothered in the middle of the night by DCS was not something we were ready to tackle. No matter what we though was right, it turned tragic with the removal of all of our children. The process of removal in our opinion was uncalled for and we would like to see the laws/process change when dealing with expedited removal of children. Our children have sure been through a traumatizing experience and hope they have not been harmed psychologically or emotionally as we are a very happy family who love each other and would do anything for each other. We hope to see a positive outcome for our trial, but worry about what the kids have been though. We would like to see some sort of public service announcement by DCS to inform other parents out there that this could happen to them, because nobody, especially children should have to go through what we are going through. We love our children and are doing everything possible to get them back to us.
Child welfare warrants were supposed to protect parental rights
Lawmakers and family rights’ advocates hoped the new law would reduce the number of children being removed by DCS. Child welfare lawsuits in Arizona and across the nation, citing the First and Fourteenth amendment, argued for due process and protections against illegal search and seizure.
In 2016, the 9th U.S. Circuit Court of Appeals ruled that removing a child without court approval violates parents’ constitutional rights.
You get your day in court for most crimes, advocates said, why wouldn’t the same apply when removing a child because of accusations of neglect or abuse?
By the time Arizona lawmakers approved a child-welfare warrant law in 2017, critics said it had too many loopholes and wouldn’t reduce unjust removals.
In fact, the total number of child removals has declined since the law took effect, but only slightly, and it’s unclear what role the new law played in the decline.
Despite lawmakers approving the warrant law to require greater transparency and address constitutional rights, DCS says it doesn’t track data for when children have been removed due to emergency situations without a warrant. And total removals include a variety of situations, including when parents voluntarily surrender their child, where the court — not DCS — orders the removal request and when a child is in the juvenile-justice system.
DCS placed 4,649 children into the foster-care system in the six-month period that ended December 2018, according to DCS data. In the six-month period prior to the July law, DCS removed 4,887 children.
That’s down from a high mark of 6,815 in fall 2015, when nearly 19,000 children were in the foster-care system and families and child-welfare advocates began pushing for a warrant law.
Concern over DCS abusing loopholes in the system prompted a second round of legislation in 2018. The restrictions designated “exigent circumstances” when DCS may remove children without a warrant. Removing the child must be so dire that there’s no time to use the electronic system to gain authorization from a judge who’s on call 24/7.
Arizona DCS Oversight Group advocates argue what happened to this family is evidence the state is abusing its power and the rights of parents.
“If they can do this to one family they can do it to anyone,” said Ford, a member of the self-appointed public watchdog group.
Contributing: Mary Jo Pitzl, The Arizona Republic
Follow Dianna M. Náñez on Twitter @diannananez.
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