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FIFTH IN A SERIES
Secrecy Thwarts Oversight of Agency Protecting Kids
Critics say the state Children, Youth and Families Department has repeatedly balked at efforts to ensure accountability, even lashing out at perceived adversaries
By Colleen Heild
Journal Investigative Reporter
Since 1993, the quality assurance office of the state Children, Youth and Families Department has been required by law to produce an annual public report on the agency's performance.
Not one has been produced.
State law also calls for a statewide advisory board to help give public input into CYFD operations.
The board doesn't exist.
Over the years, the Legislature has built layers of oversight into the law to ensure accountability for a child-welfare system shrouded in secrecy.
| CASE STUDY Unheeded Red Flags Let Foster Dad's Dark Side Flourish |
But the mechanism doesn't always work, critics say -- and that affords CYFD substantial power with little oversight. For example:
* The patchwork of checks and balances that covers Child Protective Services relies primarily on CYFD for information. That makes it difficult to independently ensure children in CYFD custody are safe.
* The agency at times has lashed out at perceived adversaries within the court system. In response to criticism, the agency has attempted to disqualify or remove court-appointed children's lawyers, citizen volunteer boards and even judges.
* Lawyers for children in state custody say CYFD sometimes fails to reveal important information needed to protect their clients. That same complaint has surfaced among judges and within volunteer citizen boards that review cases for the courts.
* Court-appointed special advocates independently review children in state custody. But the program isn't available statewide because of a lack of funds.
* Confidentiality laws designed to protect privacy of abused children and their families prevent foster parents, social workers, lawyers and even judges from speaking publicly when a specific case goes awry.
Said one children's lawyer in Albuquerque: "Though there's a supposed system of checks and balances, the department still drives this."
And CYFD's intent, another lawyer contends, "is to keep the system fragmented."
Deborah Hartz, director of CYFD's Protective Services Division, says the agency is trying to increase communication and foster an "environment of cooperation" among all parties.
"I'd like to see a kinder, gentler division," Hartz said.
"Most child welfare systems ... do not protect children without external scrutiny and pressure. And that's certainly been true in New Mexico."
MARCIA LOWRY, CHILDREN'S RIGHTS INC.
The public is allowed only a keyhole view into the operation of the agency that spends nearly $70 million a year to protect thousands of abused and neglected children in New Mexico.
By state law, Children's Court abuse and neglect cases are closed to the public, as are records pertaining to CYFD investigations of abuse and neglect.
Unauthorized release of such information is a petty misdemeanor.
CYFD Secretary Heather Wilson said her agency is proposing legislation this session to loosen the law.
"Too often, in too many states, confidentiality laws have been used to protect the agency from accountability rather than protecting the children," Wilson said in a letter to the Journal this week. "I want our laws to change to allow greater public discussion and accountability in child abuse cases."
She said she believes the new law would allow CYFD to respond when a case has become public either "through district court action, criminal prosecution, or whatever." But the proposed law says CYFD can respond only "after a public official" already publicly discloses information about a child abuse or neglect investigation or the related CYFD actions taken.
There is a question as to whether the law, as worded, would allow CYFD to release information when civil lawsuits are filed without any public offical's comments.
Ex-District Attorney Bob Schwartz said the proposal allows CYFD to defend its actions, but doesn't go far enough in allowing public scrutiny of the agency.
Child welfare advocates say increased scrutiny would help improve New Mexico's system.
"Most child welfare systems do not run adequately and do not protect children without external scrutiny and pressure," said Marcia Lowry of the Children's Rights Inc., a New York-based child advocacy group. "And that's certainly been true in New Mexico."
Lowry is co-counsel on a New Mexico class-action foster care lawsuit filed in the 1980s. The consent decree that resulted from the suit attempts to keep children from languishing in foster care.
"There's been no pressure on this agency," Lowry said. "The only pressure that's ever been exerted on this agency is in this lawsuit, and the lawsuit -- they've fought it tooth and nail."
CYFD contends the lawsuit is costing millions of dollars in legal fees and other expenses that could better be used to help improve services and move kids into permanent homes.
To shed more light on CYFD operations and improve services to children, the Legislature in 1993 ordered the agency to create a quality assurance office.
The office is supposed to perform periodic investigations and evaluations to ensure compliance with the Children's Code, monitor the agency's performance and identify deficiencies and recommend corrective action to the CYFD secretary.
"The quality assurance office shall annually produce public reports assessing the performance of the department," the law states.
The Journal wrote to CYFD last fall asking for copies of the annual reports produced by the quality assurance office.
Julie Drieke, who runs the CYFD quality assurance office, said she didn't know of her office having written such a report.
In response to the Journal letter, CYFD submitted its own annual public reports for the past several years and included its 1996 application for a quality award.
Wilson, who was appointed by Gov. Gary Johnson in January 1995, said her administration "really took a completely different approach to quality" that doesn't include the type of public reports the Legislature envisioned.
Another state law, enacted in 1992, calls for an 11-member CYFD advisory committee to assist in development of policies and procedures.
Members are to include people involved in children's issues, including two parents who receive CYFD services and two youths between the ages of 16 and 21.
The advisory board is to be appointed by the governor and had been active in the past.
Wilson said she believes that group isn't necessary because there are 16 other advisory groups with which the department works.
* * *
Independent oversight is supposed to kick in once abused and neglected children are taken into custody by the state and placed into foster care.
The players include the children's court judge, special children's advocates who monitor cases for the court, and lawyers appointed by the court to represent the child.
Within nine months or so, a child's case is also reviewed by a group of community volunteers who sit on independent citizen review boards.
Each board, by law, reviews CYFD's plan for each child in custody. The boards then make recommendations to Children's Court. Their goal is to make sure children in state custody don't get lost and forgotten.
Typically, they consider issues such as how soon the child will leave foster care and either return home or be eligible for adoption.
But last year, after the boards had been in operation 14 years, CYFD drew up legislation to eliminate them.
Hartz said CYFD recommended the legislation in part because of the boards' criticism of social workers.
She said that many times "social workers would talk about how the volunteers on the board complain how wrong our treatment programs (for foster children) are."
The board hearings also take up time for social workers who are already overworked.
Hartz said the proposal was withdrawn after agency officials met with the boards and explained "how difficult it is to work with them." She said the situation has improved.
Pat Briggs, who works with the Bernalillo County citizens review board, said the volunteers "are there strictly for the best interests of the children."
"We point things out that some people do not want pointed out," Briggs said.
Children's Court Judge Michael Martinez said that at one time the boards were under CYFD's administrative control.
"During that period it seemed to myself and a few others that their perspective of the case was the same as the department's," he said. "Right now, they're very independent, and the quality of their reports is outstanding."
But Briggs pointed out that the boards have no independent investigators and are "largely dependent upon information supplied by the social worker."
"Sometimes I think the department knows things we are not necessarily told," Briggs said.
She said, for example, the boards have no data on how often children in state custody are abused or neglected by state-licensed foster parents.
Joe Paul, who sits on the Santa Fe citizens review board, agreed: "If there's an abusive foster care situation, there's got to be a helluva lot of it before the citizens review board knows about it."
Paul said citizen review doesn't enter the picture until after a child has been in foster care for some time.
"The kid has been in care anywhere from nine months to a year before citizen review even knows," Paul said.
He said a federally funded, court-improvement project under the auspices of the state Supreme Court could speed up that process.
Another layer of oversight is provided by what are known as court-appointed special advocates. The law allows New Mexico judges to appoint volunteer advocates to ensure children in state custody are receiving services and live in a safe foster home.
But the decade-old program isn't operating statewide because of a lack of funds, said Julie Fallin, executive director of the New Mexico CASA network. "We don't, by any means, have every child covered."
Fallin said the special advocates can advise the court if problems arise in foster homes, adding that "children that have CASAs don't have the problems in foster care that other children do."
The state already provides some funding for special-advocate programs, but a bill pending in the state Legislature would provide $500,000 to expand the programs into three new judicial districts.
Even when available, the special advocates aren't automatically assigned to every case. Their appointment is up to an individual judge's discretion.
"There are some judges who don't want it," Fallin said.
* * *
CYFD last fall wasn't happy with an Albuquerque Children's Court judge, so it began to automatically disqualify him from hearing abuse and neglect cases.
Judge Michael Martinez said the agency never gave him specific reasons for the blanket disqualifications, which he said began in mid-October after he became upset "that I wasn't told at a (child custody review) that a child had been seriously sexually molested in foster care."
Martinez said CYFD didn't mention the abuse in a report submitted in the case, nor did it come up during a CYFD presentation in court.
"I learned the information through a guardian representing the child," he said. "I thought it was critical to my decision, and I was very visibly upset."
State law allows any party to a lawsuit to disqualify a judge without cause.
But there are only two judges to hear children's cases in Bernalillo County, so the CYFD action doubled the workload for Judge Tommy Jewell.
CYFD disqualified Martinez in 11 cases, but ceased the practice after he met with the agency in mid-December.
Hartz declined to talk about what happened. "It's behind us, and we've really mended our fences. There's nothing wrong with peacemaking."
Martinez said, "We did need a chance to dialogue, and I think we have more common points than we have points of disagreement."
He said the resolution isn't going to affect how he rules in children's court cases.
"It seems like these past couple of years we've had more than a fair number of kids not doing too well in foster care," he said.
To be fair, Martinez said, social workers "can't always tell what's going to happen in a foster home ... there's a lot of risk-taking that has to be done. But I think that when things do happen, I need the information."
He said, however, the blanket disqualification concerned judges around the state.
"It's still an ongoing concern because it could happen at any time and any place."
There has been testimony in Children's Court in Albuquerque "that showed social workers have been told not to talk to guardians."
CHILDREN'S LAWYER
Lawyers are appointed to give children in state custody a voice.
At times, such attorneys, known as guardian ad litems, have been criticized for not actively representing their clients.
But several Albuquerque lawyers are being criticized for their involvement.
Over the past year, CYFD has been engaged in a running battle with some Albuquerque guardians appointed by the court.
These lawyers, by law, are supposed to "zealously represent the child's best interest" and must report to the court on issues such as how the child is adjusting to out-of-home placement and whether parents are complying with court orders.
They also have explicit authority under a 1993 law to contact outside attorneys if they discover their clients have been harmed in foster care.
The outside lawyers can file damage lawsuits on behalf of the children, and the children's guardians ad litem work with them -- while continuing to represent the kids in Children's Court.
"It has created a dilemma for the department, because now they see guardians ad litem as potential adversaries," said Peter Cubra, head of Advocacy Inc. "They are only potential adversaries of people who are trying to hide something."
CYFD at times contends these guardians ad litem have a conflict of interest because they stand to benefit financially from their work on civil damage lawsuits.
Lawyers interviewed say guardians aren't entitled to a part of a settlement but can recover certain expenses.
Since 1993, there's been a surge of lawsuits against CYFD instigated by guardians ad litem who contacted outside attorneys seeking help for their child-clients.
CYFD sought removal of some of these guardians from their ongoing children's court cases, but so far no children's court judge has done so.
Some guardians ad litem contend CYFD is trying to prevent them from finding out important information for fear it will be used against the agency in a civil damage lawsuit.
Judge Martinez, of Albuquerque, said the department is under "a lot of stress."
"They're (CYFD) very concerned about being sued. And guardians have an obligation, not just an ability, under the law to inquire into possible tort actions on every case. And that makes the department very uneasy."
There has been testimony in Children's Court in Albuquerque "that showed social workers have been told not to talk to guardians," one children's lawyer said.
Martinez calls it a delicate balance.
"The guardians' position is that they're entitled to all information regarding the kid. The department's position is, I think, 'What information are we giving that's exposing ourselves?' ''
In the past five years, the state has paid more than $4 million to settle foster care abuse cases.
Brian Meyer, a deputy director of CYFD's Protective Services Division, said the agency has had an initial meeting with guardians "to begin to develop other ways of communicating with each other."
"We think we have joint goals," Hartz said.
Last year, CYFD promised to inform guardians more quickly about allegations that their clients have been abused or neglected.
Department policy required the agency to share that information but didn't specify when the notice should occur.
Children's lawyers say if they knew immediately about such investigations, they could take some action if a client appeared to be in danger in foster care.
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