Judge upholds child abuse ‘black list’ process at DCS
The director of Arizona’s Department of Child Safety was justified in placing a former group-home worker on a list of people accused of child abuse or neglect, a Maricopa County Superior Court judge has ruled.
The decision dismisses a challenge filed by the New Civil Liberties Alliance, a Washington, D.C.-based nonprofit that says it fights to protect people’s constitutional rights from overreach by government agencies.
In its challenge, alliance attorneys argued then-DCS Director Greg McKay
improperly reversed the findings of an administrative law judge, who found allegations that the group-home worker abused a teenage boy were unfounded and did not merit placement on the Central Registry.
The registry is a list, maintained by DCS, of people who have substantiated reports of child abuse or neglect. A registry listing could imperil job prospects for anyone hoping to work with children or vulnerable adults. Names stay on the list for 25 years, prompting to the registry’s nickname as a blacklist.
The law judge’s decision is subject to review by the head of the agency involved in the case.
In this instance, McKay read the record compiled by a DCS employee who investigated Phillip B’s case. McKay noted numerous witness statements that Phillip B. grabbed a 13-year-old boy either by the neck or the neckline of his T-shirt to the extent that it was hindering the boy’s breathing. Based on that, McKay rejected the law judge’s finding and signed off on a decision that put Phillip B. on the registry.
In their court challenge, alliance attorneys argue the move was unconstitutional, in part, because McKay reached his decision without giving Phillip B. a hearing. This, they argued, violated the worker’s due-process rights.
They also argued the state’s administrative appeals process is unconstitutional because it allows a state agency to investigate, prosecute and ultimately render judgment on a case. Essentially, it makes the agency the judge, jury and executioner in any given complaint.
McKay had an inherent bias to side with the findings of his investigators over the decision of an administrativelaw judge, the attorneys argued.
But Judge Douglas Gerlach said there was no evidence presented that McKay was involved in the department’s investigation nor that he had any knowledge of the matter before the law judge’s decision hit his desk.
The charge that the state’s appeal process is unconstitutional falls flat in light of long-established law that allows those functions to be combined in one agency, Gerlach found. The U.S. Supreme Court ruled 85 years ago that Congress can delegate disputes between the government and citizens to executive officers, if it so chooses.
“By the same reasoning, the Arizona Legislature does not violate the separation of powers doctrine by assigning decision-making authority regarding placement of names on the state’s Central Registry to an administrative agency,” Gerlach wrote.
Adi Dynar, an attorney who represented Phillip B., said he was disappointed with the ruling and said the alliance and Phillip B. will appeal the decision.
A judge needs to look at this case with fresh eyes, Dynar said, rather than rely on a decision that rested not on the findings of a law judge distanced from DCS, but instead on the head of the agency himself.
The lawsuit was intended to point out the flaws in a system that allows an agency to essentially be judge, jury and executioner in any given complaint. Dynar said they will ask the Arizona Court of Appeals to give the case a new trial.
Meanwhile, Phillp B. was fired from his part-time job at New Horizons, a group home for boys.
He continues to teach, remotely, for a school district. School districts have their own rules on screening employees.
An Arizona Republic investigation found the state Department of Education does not crosscheck teacher applicants against the Central Registry and instead relies on the mandatory fingerprint clearance card to vouch for their record. But the state Department of Public Safety, which issues the clearance cards, does not have access to the registry.
Only DCS can check the registry and an agency attorney told The Republic that very few schools make such requests.
About this report
An ongoing grant from the Arizona Community Foundation supports coverage of child-welfare issues. To keep up on the latest news about the foster care system, how the state handles reports of child abuse and neglect and other topics, a subscription to The Arizona Republic helps support local journalism.