Phillip B. v. Gregory McKay and Arizona Department of Child Safety

CASE SUMMARY

A core principle of the American justice system holds that defendants are considered innocent until proven guilty. But under the administrative review system in place at the Arizona Department of Child Safety (DCS), a mere finding of “probable cause” by the agency’s director will land the accused on the Arizona Central Registry of child abusers for 25 years.

For decades, NCLA client Phillip B. has worked with youth in many capacities including counselor, football coach, teacher and professional supervisor of foster kids, devoting his career to making a positive difference in their lives. He had an untarnished reputation as a person working with youth. But in 2018, Mr. B. (whose name has been redacted to preserve his anonymity) found himself falsely accused of child abuse by one of the children in his care.

According to the findings of fact entered into the record, a 15-year-old resident where he was employed, accused him of using “inappropriate restraint” against a 13-year-old resident. In reality, Mr. B. had “placed his hand on the boy’s shoulder and admonished him to calm down” after the teen became distressed because he did not want to do chores. An administrative law judge (ALJ) from the Office of Administrative Hearings, which is independent of DCS, heard eyewitness testimony and made credibility determinations. She then concluded that probable cause did not exist to support a finding of abuse. In other words, she cleared Phillip B. of the charge.

Remarkably, despite the ALJ’s conclusion, DCS Director Gregory McKay rejected the findings, amended both the ALJ’s findings of fact and conclusions of law, and substituted his own judgment in place of the ALJ’s. Without court intervention, this turn of events would add Mr. B.’s name as a child abuser on the Arizona Central Registry, utterly destroying his reputation and career.

The New Civil Liberties Alliance is challenging several aspects of the DCS’s process, including the low standard of proof (“probable cause”), the inability to cross-examine witnesses, and the ability of a bureaucrat at DCS to reverse the ALJ’s findings and act as prosecutor, judge, and jury in determining the fate of the accused.

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CASE STATUS:
Active. Motion for stay of agency decision pending resolution of the case in Superior Court is pending.

CASE START DATE:
August 30, 2019

DECIDING COURT:
Superior Court of Arizona, Maricopa County

ORIGINAL COURT:
Final agency decision issued by the Director of Arizona Department of Child Safety

 

CASE DOCUMENTS

Aug 30, 2019 | Notice of Appeal for Judicial Review of Administrative Decision

Whether A.R.S. §§ 8-804, 8-11, Ariz. Admin. Code §§ R21-1-501 (13), R21-1-501 (17), which authorize reports and entry of findings of abuse or neglect on the Arizona Central Registry based on “probable cause” are unconstitutional, facially or as applied to Phillip B., under the state and federal constitutions…

Read complete Notice of Appeal.

Aug 30, 2019 | Memorandum of Points and Authorities in Support of Appellant's Motion for Stay of Agency Decision

ALJ Decision. Mr. B. worked as a caregiver at New Horizons, a group home housing male children. On the morning of June 23, 2018, Mr. B. and Mr. Lam L., another caregiver employed by New Horizons, were on duty at the group home when an alleged child-abuse incident occurred relating to G.C., a 13-year-old resident of the group home…

Click to read the complete document. 

Aug 30, 2019 | Motion for Stay of Agency Decision (Oral Argument Requested)

Pursuant to A.R.S. § 12-911 and JRAD Rule 3. Appellant Phillip B. respectfully requests a stay of the agency decision pending the final disposition of the appeal for the reasons set forth in the accompanying Memorandum of Points and Authorities…

Click here to read the full legal document.

PRESS RELEASES

Sep 3, 2019 | NCLA Questions Constitutionality of Arizona Department of Child Safety’s Administrative Proceedings

Washington, D.C. – The New Civil Liberties Alliance is taking a case to right a wrong committed by the Arizona Department of Child Safety (DCS). A core principle of the American justice system holds that defendants are considered innocent until proven guilty. But under the administrative review system in place at DCS, a mere finding of ‘probable cause’ by the agency’s Director will land the accused on the Arizona Central Registry of child abusers for 25 years. NCLA has filed a motion with the state Superior Court of Maricopa County to stay enforcement of the DCS Decision and Order, pending a fair trial on the abuse allegations.

For decades NCLA client Phillip B. has worked with youth in many capacities including counselor, football coach, teacher and professional supervisor of foster kids, devoting his career to making a positive difference in their lives. He had an untarnished reputation as a person working with youth. But in 2018, Mr. B. (whose name has been redacted to preserve his anonymity) found himself falsely accused of child abuse by one of the children in his care.

According to the findings of fact entered into the record, a 15-year-old resident where he was employed, accused him of using “inappropriate restraint” against a 13-year-old resident . In reality, Mr. B. had “placed his hand on the boy’s shoulder and admonished him to calm down” after the teen became distressed because he did not want to do chores. An administrative law judge (ALJ) from the Office of Administrative Hearings, which is independent of DCS, heard eyewitness testimony and made credibility determinations. She then concluded that probable cause did not exist to support a finding of abuse. In other words, she cleared Phillip B. of the charge.

Remarkably, despite the ALJ’s conclusion, DCS Director Gregory McKay rejected the findings, amended both the ALJ’s findings of fact and conclusions of law, and substituted his own judgment in place of the ALJ’s. Without court intervention, this turn of events would add Mr. B’s name as a child abuser on the Arizona Central Registry, utterly destroying his reputation and career.

The New Civil Liberties Alliance is challenging several aspects of the DCS process, including the low standard of proof (“probable cause”), the inability to cross-examine witnesses, and the ability of a bureaucrat at DCS to reverse the ALJ’s findings and act as prosecutor, judge, and jury in determining the fate of the accused.

The arbitrary nature of a system that labels an innocent person as a child abuser based on ‘probable cause’ is unconstitutional. We believe agency action in this case contradicts current law, is not supported by substantial evidence, and is the ultimate abuse of administrative power.”—Adi Dynar, Litigation Counsel, NCLA

“The lack of due process inherent in DCS’s administrative review process is shocking. No one should be at risk for a penalty as severe as being placed on the Arizona Central Registry without a full and fair hearing and a verdict from an independent judge.” Mark Chenoweth, Executive Director and General Counsel, NCLA

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online: NCLAlegal.org.