Phillip B. v. Mike Faust 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

April 15, 2020 | Appellant’s Reply Brief (Oral Argument Requested)
Jan 27, 2020 | Appellant's Opening Brief (Oral Argument Requested)
Nov 8, 2019 | Appellant's Reply in Support of Motion for Stay of Agency Decision (Oral Argument Requested)

Appellant’s Motion and this Reply confirm that the requested stay is not only warranted but a necessity for protecting Phillip B.’s constitutional rights.The Court should stay DCS’s decision in In the Matter of Phillip B., Cause No. 19C-1028237 DCS (July 28, 2019), and order removal of his name from the Central Registry while this case proceeds.

Click here to read the full legal document.

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…

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PRESS RELEASES

April 15, 2020 | NCLA Challenges Constitutional Flaws in Arizona Dep’t of Child Safety’s Administrative Process

Washington, DC (April 15, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a reply brief today in Maricopa County Superior Court on behalf of client Phillip B.  NCLA’s brief exposes inherent problems with DCS’s (Arizona Department of Child Safety) unconstitutional administrative-review scheme, which violates due process by stacking the deck in the agency’s favor.

Mr. B. (whose name has been redacted to preserve his anonymity under court rules) had an untarnished reputation working with troubled youth until 2018 when he found himself falsely accused of child abuse by one of the teens in his care. According to the record, Mr. B. “placed his hand on the boy’s shoulder and admonished him to calm down” after the troubled teen became distressed. 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 and cleared Phillip B. of the charge.

Despite the ALJ’s conclusion, state law allowed DCS to appeal the decision to its own Director, who rejected both the ALJ’s factual and credibility assessments. The Director substituted his own judgment in place of the independent ALJ’s based on third-hand testimony, which was thoroughly impeached during the trial. Based on this contrived record, the Director then ordered that Mr. B.’s name be placed on the Arizona Department of Child Safety Central Registry of child abusers for 25 years. He is appealing to the state trial court to clear his good name.

NCLA is challenging the following aspects of Arizona’s administrative process, each and all of which deprive Mr. B. of liberty and property without due process of law under the U.S. Constitution and Arizona Constitution or violate the state constitution’s separation-of-powers doctrine.

  • Both the state and federal constitutions mandate the use of a standard of proof at trial that is higher than probable cause. DCS, however, uses that impermissibly low standard to place people’s names on the Central Registry.
  • While the ALJ conducts the trial using well-established Rules of Evidence and Civil Procedure, there are important exceptions under the OAH procedure, including permitting the admission of “hearsay” statements by children and allowing the “reporting source” or the DCS caseworker who creates the initial report to avoid testifying and being subject to cross-examination.
  • Whenever the DCS is dissatisfied with the ALJ’s decision, it can appeal to its own Director, who then acts as a judge in DCS’s own case.
  • The DCS Director, without personally observing witnesses testify, and who operates without following the rules of evidence and civil procedure, is allowed to reject or modify the ALJ’s findings of fact and credibility determinations.
  • On appeal, the Superior Court is then required to defer to the Director’s fact-findings and credibility determinations, contained in the altered administrative record, despite the fact that the Director had no firsthand knowledge of the proceedings and had no ability to assess the credibility of witnesses.

Mr. B. asks the court to declare this unfair process to be unconstitutional. NCLA is also challenging DCS’s decision to place Mr. B.’s name on the Central Registry before he had exhausted state-court appeals.

NCLA released the following statements:

“It is unconscionable that DCS should have the power to ruin a man’s life based on hearsay and fabricated allegations. Arizona courts have set the trend in independently interpreting the state constitution as protecting civil liberties to a greater extent than the federal constitution. In keeping with Arizona’s enviable tradition of judicial independence, impartiality, and non-acquiescence, we have asked the Court to vacate the DCS Director’s decision.”

Adi Dynar, Litigation Counsel, NCLA

“Fairness must be a hallmark of all judicial and quasi-judicial proceedings.  To think that a DCS Director can “delete” the factual findings of an ALJ in order to find a person “guilty” is the height of unfairness.  This situation is made worse by the OAH’s refusal to allow Mr. B. to cross-examine his accusers.  All in all, the Director’s decision must be reversed to protect the reputation of a man who has spent his decades-long-career taking care of troubled youth.”

Harriet Hageman, Senior Litigation Counsel, NCLA

For more background on this case visit:https://nclalegal.org/phillip-b-v-gregory-mckay-and-arizona-department-of-child-safety/

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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 at NCLAlegal.org.

Click here to download.

Feb 3, 2020 | NCLA Challenges Woefully Inadequate Probable-Cause Standard in Arizona Child Safety Case

Washington, DC – The New Civil Liberties Alliance is asking the state Superior Court of Maricopa County to reverse an unjust decision by the Arizona Department of Child Safety (DCS) that overturned an independent administrative law judge’s (ALJ) ruling and wrongfully placed an innocent man on the Arizona Central Registry of child abusers for 25 years. Legal actions by the former Director of DCS and a state law that permits such draconian penalties on a mere showing of ‘probable cause’ are among the factors to blame for this injustice.

In the appellant’s opening brief, NCLA exposes several problems in the DCS process that merit review, including the low burden of proof (“probable cause”) DCS has to meet, the inability of defendants to cross-examine witnesses, and the DCS Director’s ability to reverse the independent ALJ’s findings and act as prosecutor, judge, and jury in deciding the fate of the accused. NCLA believes that these defects deprived our client Mr. B. of liberty without due process of law in violation of the Arizona Constitution and the U.S. Constitution.

Mr. B. (whose name has been redacted to preserve his anonymity) had enjoyed an untarnished career working as a coach, teacher and professional supervisor at group homes for troubled teens until the morning of June 28, 2018. That day a 15-year-old living in the group home supervised by Mr. B. fabricated accusations against him of “inappropriate restraint” of a 13-year-old teen resident who became disgruntled when asked to do his chores. According to the record, Mr. B. “placed his hand on the boy’s shoulder and admonished him to calm down” after the troubled teen became distressed.

After a two-day trial, at which the independent ALJ credited eyewitness testimony from Mr. B and from the only other adult present at the scene, DCS failed to convince the tribunal that probable cause existed to place Mr. B. on the Arizona Central Registry. The ALJ, therefore, cleared Mr. B. of the charge.

The remarkable series of events that occurred following the ALJ’s decision is nothing short of unconstitutional.

Despite the ALJ’s conclusion, state law allowed DCS to appeal the decision to then-DCS Director Gregory McKay. He proceeded to reverse the decision, deleted the ALJ’s findings of fact and credibility determinations, and ordered Mr. B’s name to be placed on the Central Registry for 25 years. Without court intervention to correct this gross abuse of power, it will destroy Mr. B’s reputation and career.

 
NCLA released the following statements:

“An Executive Branch political appointee should not be able to ‘delete’ facts found after a full trial by an independent judge. But that’s what former DCS Director McKay did. Hopefully, the state court will recognize the glaring due process and distribution of powers problems instead of giving deference to DCS’s decision.” Adi Dynar, Litigation Counsel, NCLA

“What has happened to Philip B. is horrible. But the greater tragedy is that Arizona’s entire system for placing adults on the Central Registry for child abusers is fraught with due process violations. The state and federal constitutions dictate that decisions of this magnitude cannot be made without careful attention to the rights of the accused.” —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.

Click here to download.

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.

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