The impact of DCS’ discovery gap on parents – a former department attorney’s perspective  

On Aug. 21, 2023, a letter from the Division Chief Counsel representing the Department of Child Safety (DCS) went out to all presiding judges across the state of Arizona. The letter requested that they “suspend any trials and severance proceedings” set in the next two weeks due to a review that revealed thousands of documents were not made discoverable in over 3,800 cases, with an estimated 139 finalized adoptions also affected. It should also be noted that the problem dates back to when the state’s database software program, Guardian, was first implemented in February 2021 (meaning, the number of cases affected could be exponentially greater).

While I appreciate the transparency from DCS and the immediate stay on pending proceedings, the ramifications of this lack of discoverable information, beyond the two-week shutdown, are unclear. What is clear is that dependency proceedings, severance proceedings and adoption proceedings may have gone before a judge without complete disclosure. As a former Assistant Attorney General for DCS and a current attorney representing parents in DCS proceedings, I recognize this issue might not be fixable in two weeks and I have significant concerns about whether parents were afforded the due process that a fundamental right to parent deserves.

The Division Chief’s letter notes that the database DCS uses to retain its records, Guardian, is to blame, the system is heavily reliant on human engagement. For example, third-party providers like psychologists who evaluate children and parents for the department have to submit their reports to Guardian. The assigned caseworker or another DCS employee then has to review the record before admitting it into the system, thereby making it discoverable information. Such reports can then be testified about in court and could affect whether a judge determines a termination of parental rights is appropriate. Other records that have to be “admitted” into the database include substance abuse records, visitation records and medical records. Similar to a report by a psychologist, if records like these were never admitted, this could mean that parental rights were terminated by a court that had insufficient information.

While the omission of documentary evidence is problematic, it goes beyond that, as the court’s ability to assess the credibility of witnesses could also have been impacted by this data gap. It’s worth noting that credibility findings are not reviewable on appeal and can influence the outcome of the case. The lack of access to these records at trial could have affected the court’s credibility finding of a parent, as they may have said they were evaluated by the professional but not been believed, because the report was never part of the record.

It also could have affected the court’s credibility finding for a DCS caseworker, most of whom rely on their notes and reports in the database to prepare for trials, which can take place months after they worked on the case. Moreover, DCS has a relatively high turnover rate for DCS employees, which means the caseworker who testifies at a trial may not have been the person initially assigned to investigate. Meaning, that caseworker can only rely on what was put into the Guardian system to form the basis of their testimony.

The Attorney General and Department of Child Safety did the right thing here by flagging this issue for the public. Transparency is crucial in the days to come so that we, as advocates for families can trust that we have all the information to which we are entitled to help ensure a fair process.

Deandra Arena is an attorney at Woodnick Law, PLLC. She previously was an Assistant Attorney General for the Protective Services Section (representing DCS) in Arizona. She is licensed to practice in Arizona and California.