Updates: Adds quotes and details, including from Gov. Katie Hobbs. Corrects spelling of Kirsten Wright.
State officials have discovered a flaw in a system used by the Department of Child Safety that has let judges make decisions on removing children from homes without having all the information they needed.
And now Attorney General Kris Mayes is going to review more than 650 closed cases to see if any of the documents that were not disclosed would have changed the outcome.
All that that raises the possibility that some court decisions about terminating parental rights, guardianships or adoptions will be overturned.
“I think it would depend on the circumstances in the case,” said David Lujan, the agency’s new director.
But he told Capitol Media Services Monday that even if DCS did not directly provide the documents to the courts or the parties — like the parents involved — they may have obtained them through other means, like subpoenas to the private providers who prepared them for DCS in the first place.
Those closed cases may only be part of the problem.
Kirsten Wright, an assistant attorney general, sent letters Monday to the presiding judges in all 15 counties asking that they suspend action on all pending cases involving placement of children for the next two weeks while her agency and DCS determines what records may be missing.
“Our preliminary assessment of the situation has determined that a minimum of 3,800 juvenile dependency cases statewide may be impacted,” wrote Wright, the chief counsel of the Child and Family Division of the Attorney General’s Office.
This also includes cases where an appeal is pending. She said her office will ask that those cases be immediately returned to the trial judge who made the initial decision for a second look.
“We are going to look at this on a case-by-case basis,” Wright told Capitol Media Services. “And then the courts will have to decide what happens with regards to those cases.”
All that, she said, will help determine which cases need to be reopened — and, potentially, the prior decisions about the fate of the child reversed.
But Wright said that’s not a given. She said a court may determine that the failure to disclose the documents resulted in “harmless error,” meaning that the result of the case would not have been changed even if the reports had been available.
While Wright and Lujan are working on a fix, Mayes and Gov. Katie Hobbs are laying the blame for the problem at the feet of former Gov. Doug Ducey and Michael Faust, who had been Ducey’s pick for DCS director.
“They implemented this system and allowed these non-disclosures to go on for two years,” the attorney general told Capitol Media Services. “It’s not acceptable to have a computer system that isn’t properly disclosing documents to all the parties.”
Hobbs took her own shot at Ducey.
“I’m proud that Director Lujan is taking swift action to right the wrongs of the previous administration,” said Hobbs in her own statement. “The mistakes made are unacceptable.”
The problem is with a system put in place in 2021 by DCS to track all documents.
Known as Guardian, it was billed as a replacement for CHILDS, the Children’s Information Library and Data Source. First implemented in 1997, the agency found various problems with that program, like limited reporting capabilities and poor data quality.
Mayes, however, said Guardian had its own problems.
“It was a flawed system from the get-go,” she said, citing delays in payments to foster parents. Those issues resulted in the resignation of the chief information officer for DCS.
But what Lujan discovered has much more serious implications.
Guardian was set up so that outside entities providing services for children and families could file their own reports directly into the system.
“For example, we contract with organizations that do supervised parenting time visits with families,” he said.
“Then they write a report about how that supervised visit goes,” Lujan explained. “They could then upload it into Guardian.”
He said the previous administration, however, had concerns that a report might not be put into the correct case file. Consider, Lujan said, two families with the same last name.
So, the system was programmed so that the providers could still upload their reports — but only into the portal. And then it would have to be reviewed by a case manager or supervisor before it actually could get put in the family’s file.
Only thing is, Lujan said, those DCS workers weren’t always checking that portal to be sure that those reports did, in fact, get into the file that was shared with the courts. And that, he said, created this backlog of unfiled reports — the ones the agency and the Attorney General’s Office now needs to review to see if their absence from the file affected the outcome.
Lujan said the failure to put the documents into the files made available to judges, families and attorneys does not necessarily mean any decisions will be reversed.
Still, he said, that’s why his agency and the Attorney General’s Office, “out of an abundance of caution,” are doing a case-by-case review to see whether documents were not disclosed.
And if not?
“Then (we) look to see if a document by some chance wasn’t provided, would that have in some way been determinative to the outcome,” Lujan said.
He said the problem has now been fixed.
In essence, Lujan said, any time a document is filed by an outside provider it now will go directly into the case file. But to prevent the kind of mis-filing issue that the system was built to prevent, he said the case manager will get an alert, similar to programs that tell people they have unread emails.
“They’ll go in and they’ll check them to make sure that those files belong in those cases,” Lujan said.
While Guardian was designed to be a better alternative to CHILDS, he said there are issues that remain.
He said DCS contracted with IBM last year to work on the system originally built by Microsoft.
“There were some flaws in the original design that are now being corrected,” Lujan said, flaws that made it hard for users to navigate.
“They’re now in this process of making a lot of fixes to Guardian,” he said. “We feel very good that we’ll have a good system within the next few months once those changes have been made.”
The actions and comments by the governor, DCS and the attorney general come less than a week after Hobbs and Lujan had invited Ducey and Faust to a ceremony to open up a new facility for children removed from their homes could be immediately taken. And both Hobbs and Lujan praised their predecessors for their work with children.
But Hobbs press aide Christian Slater said Monday there is nothing inconsistent about the current governor, less than a week later, blasting Ducey and his DCS pick for what he said are problems unrelated to the new arrival center.