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SUMMARY
The Office of the Auditor General has conducted a special
performance audit of the child removal process, and the substantiation and
appeals process used during Child Protective Services (CPS) investigations of
child abuse and neglect reports. CPS is a function of the Division of
Children, Youth and Families within the Arizona Department of Economic
Security. This audit specifically addresses a legislative request approved by
the Joint Legislative Audit Committee on August 9, 2001.
Legislative request and scope
In accordance with the legislative request, this special performance audit
focuses primarily on two CPS functions: (1) the child removal process—the
process by which CPS and other involved parties determine whether a child
should be removed from his/her parents’ or guardians’ home, and (2) the
substantiation and appeals process—the process by which CPS and other involved
parties determine whether abuse or neglect incidents should be substantiated.
The legislative request also directed auditors to investigate several other
closely related items, including:
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Legal and compliance issues, including the constitutional
basis for child removal, due process rights of accused parents, and
compliance with federal guidelines established for the child removal
process, and the substantiation and appeals process; and
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Other areas including placement with family members,
public versus confidential information contained in case files, and
selection and oversight of service providers such as psychiatrists and
medical doctors who are used during the removal and substantiation
processes.
Child removal process
(see pages 5 to 13)
One of CPS’ most crucial responsibilities is determining whether it is
necessary to protect children by temporarily removing them from their parents’
or guardians’ custody. In 2001, CPS conducted about 25,500 investigations and
removed approximately 3,900 children from their homes.
Numerous court cases over the past 50 years in Arizona, including one in the
Arizona Supreme Court, have upheld the State’s right to remove a child when it
is necessary to protect the child. However, courts have also found that
parents have a fundamental natural right to their children that is entitled to
constitutional protection such as due process. Therefore, before removing a
child, a CPS investigator must determine that the child is in imminent danger.
Specifically, state statutes allow that a child may be removed if he or she is
either “suffering or will imminently suffer abuse or neglect” or “suffering a
serious physical or emotional damage that can only be diagnosed by a medical
doctor or psychologist.” Arizona Administrative Code further defines what
constitutes imminent harm. However, not all conditions that the general public
might consider abuse or neglect are defined. For example, neither statute nor
code specifies that substance-exposed newborns can be removed from their home
or that they should automatically be considered abused or neglected.
Therefore, the Division has provided its workers further guidance on imminent
harm and the type of evidence needed to substantiate abuse or neglect through
policies and directives. Again, using the case of substance-exposed newborns,
a division memo outlines five questions that an investigator must answer in
order to substantiate neglect, including required “medical documentation that
the exposure created a substantial risk of harm to the child’s health or
welfare.”
If the investigator, in consultation with his or her supervisor, determines
the child is in imminent danger, he or she has the authority to remove the
child from the home. CPS must then follow additional procedures required by
federal and state laws. These procedures include:
When children are removed, CPS attempts to locate relatives
to care for them, rather than placing them in traditional foster care. A
previous Auditor General study (see Auditor General Report No. 02-03) found
that about 24 percent (or 1,450 of 6,100) of the children in foster care in
Arizona at the end of calendar year 2001 were placed with relatives. However,
the Auditor General’s Office recommended that the Division provide additional
training to case managers on the requirements of the kinship foster care
legislation; develop additional monitoring mechanisms to help ensure
compliance with these requirements; and use, when appropriate, its current
goals, objectives, and performance measures to assess the outcomes of kinship
foster care placements.
Auditors noted no instances where the procedures the Division has established
did not adhere to federal guidelines and found that the Division’s use of
removal review teams exceeds federal guidelines. Additionally, parents can
receive government-funded legal representation when the court finds that they
cannot reasonably afford it. Government-funded legal representation is handled
by each county.
The Legislature should consider further clarifying in statute the definitions
of abuse or neglect and what criteria should be considered in removal
decisions. For example, about 13 other states have laws or codes that either
include substance-exposed newborns in the definitions of abuse or neglect, or
indicate that substance exposure constitutes a criteria for removal.
Additionally, auditors identified two ways the Division can improve the child
removal process: (1) The Division should ensure that parents receive
sufficient information to understand how to properly request an administrative
review of their child’s removal from the Family Advocacy Office. From July 18,
2000, to May 31, 2002, only 49 requests were made for a Family Advocacy Office
review. During this same period, state law would have allowed a Family
Advocacy Office review for about 7,400 children. Auditors found that the
written information provided to parents about the Office’s optional removal
review was inadequate. (2) The Division should evaluate the value and
effectiveness of removal review teams. Although removal review teams were
designed to provide additional oversight of the child removal process, their
impact is unknown because the Division has not compiled or analyzed existing
information. The federal government does not require the Division to form
removal review teams.
Substantiation and appeals process
(see pages 15 to 23)
In addition to determining whether a child can safely remain in his or her
home, when conducting investigations, CPS must also determine whether the
specific allegations of abuse or neglect occurred and should be substantiated.
Legislation was enacted in 1997 to provide accused parents an opportunity to
appeal substantiated allegations of abuse or neglect. In response to that
legislation, the Department created the Protective Services Review Team to
review the evidence gathered by CPS and to determine whether it is consistent
with Arizona’s standard of evidence and the statutory definitions of abuse and
neglect. If the team staff agrees with CPS’ decision, the case is referred to
the Office of Administrative Hearings. However, the alleged abuser must
request the review and hearing process when he or she is notified of the
proposed substantiated allegations.
To substantiate an allegation of abuse or neglect according to Arizona’s
standard of evidence, the CPS case manager must identify facts that provide
reasonable grounds to believe the abuse or neglect occurred, also known as
probable cause. Case managers can seek the advice of medical professionals
such as psychiatrists and doctors to help make their decision, and case
managers also conduct other activities including interviewing the victim,
family members, neighbors, and teachers, and examining prior CPS reports. The
Division acted to clarify both its definitions of abuse and neglect and its
standards regarding the type of evidence needed to substantiate reports. For
example, the Division clarified, through a memo to all staff in January 1999,
that reports should not be substantiated when the accused person’s behavior
created only “the potential” for abuse or neglect. The Division also issued a
memo to clarify its practices in November 2001 and required case managers to
obtain assertions from medical professionals that children exposed to drugs
prior to birth had been harmed as a direct result of their mother’s drug use.
The percentage of reports that are substantiated has declined from
approximately 23 percent in 1998 to 16 percent in 2001. Although the exact
reasons for this decline are unknown, the Division’s clarifications of its
definitions and standards for determining abuse and the addition of the
Protective Services Review Team may be contributing to this decline.
Substantiated reports of abuse or neglect are listed on the State’s Central
Registry, and consistent with federal law, the State has enacted procedures
specifying who can access certain types of information from the Registry and
case files. Access to the Registry is limited and unavailable to the general
public. Further, by law, most of the information contained in case files is
considered confidential because it contains personal identification and other
sensitive information. For example, a case file might include information
developed during the investigative process, such as a child’s school records
or an accused person’s criminal history and medical records.
Auditors identified two steps that the Division can take to improve the
substantiation process. Specifically, the Division should provide additional
training to all case managers on the standards that should be met to
substantiate a report. Interviews with division staff indicated concerns about
case managers’ understanding of what is needed to substantiate a report. For
example, 9 of the 31 investigative case managers responding to an auditor
phone questionnaire disagreed or strongly disagreed with the statement that
“the current standard of evidence for substantiation is clear.” Second, the
Division should improve its process for providing to all case managers and
supervisors information about the reasons cases proposed for substantiation
are being overturned. During the past 2 calendar years, the team overturned
the largest percentages of proposed substantiations for the same four reasons,
including that the incident did not meet the statutory definition of abuse or
neglect or probable cause was not established.
Read full report in Acrobat PDF format
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