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September 19th, 2012 by Robert Franklin, Esq.
As if Arizona Child Protective Services doesn’t have enough problems with record-shattering caseloads and caseworkers quitting by the hundreds, now the state Department of Economic Security that oversees CPS is reporting that a “computer glitch” has possibly resulted in countless children being taken needlessly from their parents.  Read about it here (Daily Courier, 9/15/12).   The glitch is actually a programming error that’s existed since the installation of the current system in 1996.  At present, DES has sent notices of the error to over 30,000 people including 21,000 attorneys for parents.  More astonishing still is the fact that those 30,000 notices are just for people affected by the programming error since the start of 2010.  Prior to then, DES says it has no idea of how many people may have been effected.

The defective program is supposed to produce CPS documents on individual cases.  So, if parents are faced with a CPS action to take their children or terminate their rights, they or their attorneys are entitled to receive most of the information in CPS’s files on the case.  But the program has only been producing about one-third of the documents required by law meaning that parents and their lawyers have been in the dark since 1996 about what CPS is doing, what it knows, what its experts believe, what caseworkers have decided, etc.  Needless to say, that’s vital information to any parent fighting a CPS action.

“If a case got to the wrong result because information wasn’t disclosed, that’s a big, big problem,” said Mark Kennedy, who has represented about 400 parents over the past three years. “To me, it’s pretty significant when CPS says we’re going to contact 21,000 lawyers. That’s like saying, ‘Start searching your case files because there may be some problems out there.’”

And of course those 30,000 cases are just the tip of the iceberg, just the cases that CPS has dealt with in the past 2 1/2 years.  The fact is that every parent who’s been adversely effected by a CPS trial in the previous 14 years will be asking their lawyer to demand the full CPS file to see if the agency’s actions complied with the law.  That alone is going to mean tens of thousands, perhaps hundreds of thousands of cases that CPS must dig up and respond to.  How many of those will prove to be legally defective is anyone’s guess, but just the work required to process all the requests will be daunting and expensive.

Here’s what else will be expensive – the countless civil lawsuits from parents who claim they could have kept their kids if they’d only had all the information they were entitled to.

Attorneys who represent parents and children in CPS cases say withholding these public records could prove costly for the state if it turns out children were removed from or returned to parents based on incomplete or inaccurate information…

Attorney Jorge Franco said he’s not surprised that CPS has discovered problems with its public disclosure.

He has sued CPS roughly 20 times and won seven-figure verdicts against the agency.

Franco said the computer glitch could expose the state to liability if it can be shown that additional records would have changed the outcome of a case.

“I have absolutely no doubt that because of this (CPS has) gotten a pass on tons of claims,” Franco said.

So, in addition to everything else going wrong with Arizona CPS, it can now look forward to an unimaginable number of outraged parents claiming – and proving in court – that their children were taken unlawfully.  In typical fashion, DES is now claiming that, for 16 years, it had no idea there was a problem with the system of producing documents.

“We thought we were printing out everything that there was,” Peterson said. “We didn’t have any reason to believe until this summer that we were not meeting our obligations.”

I don’t buy it for a second.  The notion that, during 16 years of not producing all the information required, no parent, no attorney ever said “I know Dr. So-and-so filed a report, but it’s not here.  What gives?” doesn’t pass the smell test.  In fact, I bet we’ll find that, or something similar has happened countless times.

Arizona has been trying to do child protection on the cheap for many years and those chickens are coming home to roost.  It’s about to find out that doing it right the first time would have saved the state money and done the right thing by parents and kids at the same time.  Will anyone in the state’s government get the message or care?  Or will it appoint another task force?

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