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Holes in Safety Net
Flaws in the system can mean more trouble -- instead of protection -- for foster children

Series by Colleen Heild Photo Illustration by Jaime Dispenza Of the Journal

Foster care isn't always a safe haven.
Alamogordo attorney Andrea Lenway found herself in the unusual position last year of asking that a group of foster children be returned to their abusive biological parents.
It turns out the foster parents were just as abusive, she recalled.
"It was a decision I didn't like, but we had no other place to put these kids," said Lenway, who had been appointed by the court to represent the children when they first came into state custody.
'Someone Beat the Hell Out of This Kid'
Finding a safe substitute home for sexually abused, battered, abandoned or drug-exposed children is risky business.
And there is a growing concern that in the name of protecting children, the state's Protective Services Division is inadvertently putting some in harm's way.
A Journal investigation of the state's foster care system reveals:
* More than 160 foster parents over the past five years have been confirmed by the state as having abused or neglected children in their care.
* A lack of suitable foster homes, especially for the developmentally disabled, has resulted in the state Children, Youth and Families Department placing some children with marginally qualified foster parents.
* Superficial background checks have enabled adults with histories of abuse or run-ins with police to be licensed as foster parents. Some of these foster parents, in turn, abused children placed in their care.
* Abuse has persisted, in some instances, in foster homes that weren't adequately monitored by the state.
CYFD officials say they are expanding background checks of prospective foster families.
And a CYFD quality control group is also looking at improving the system for the 1,600 children in foster homes statewide.
"We're going to have kids get hurt, we're going to have problems arise," department Secretary Heather Wilson said. "What we're trying to do is reduce the risk and find out what kinds of things work."
Suit settlements

Here are a few of the foster care lawsuits the state has settled:
* The state settled for $150,000 a case in which a 5-year-old girl was placed in foster care with an uncle who sexually abused her.
CYFD was accused of failing to do a criminal background check on the uncle, who had a "long criminal history, including charges of sexual misconduct."
The state contended that its social workers acted in good faith and were immune from liability.
* The state paid $1.75 million last year to settle a case in which the social worker monitoring the foster home of John Dale McKenzie in Carlsbad lived on McKenzie's property.
McKenzie was sentenced in March 1994 to 4{ years in prison after being charged with repeated sexual assaults on his 14-year-old foster daughter. She became pregnant with his son, who was put up for adoption.
Court documents show McKenzie was alleged to have fondled another foster daughter.
In another instance, McKenzie allegedly punished two young boys in his care by strapping them together with duct tape. A third child used a pocket knife to free them, and in doing so, severely cut the first boy's arm, court documents state.
Albuquerque lawyer George "Pat" Bryan, who represented the social worker involved, said serious injury occurred but the case didn't reflect a "huge failure" of the system.
* In a lawsuit the state settled for $811,000 in 1995, foster father David Peralta of Roswell was accused of sexually assaulting his 11-year-old foster daughter in 1989. A criminal complaint states he also molested another young relative. Peralta is now serving 18 years in prison.
The civil lawsuit alleged social workers failed to investigate why two sisters of the 11-year-old had run away from the home prior to the sexual abuse being discovered.
Social workers were also accused of failing to make periodic home visits.
CYFD contended its employees acted in good faith.
* Albuquerque attorney Lisa Simpson said she was barred by confidentiality rules from revealing the amount the state recently agreed to pay to two developmentally disabled twins abused in an Albuquerque foster home.
The lawsuit contended that from 1987 to 1992 the girls were drugged, neglected, abused and injured in foster care.
Evidence showed there weren't enough foster homes available "particularly for girls who had the disabilities that our clients did. They had serious disabilities and are hard to handle.
"There was a real reluctance to take them out of a placement because they (CYFD) don't have many other places to put them," Simpson said.
The state and the foster care provider contended the injuries were either unsubstantiated or caused by a medical condition.
The state argued that the girls would have been moved had the abuse been substantiated.
* The state paid nearly $600,000 in damages in the death of 2-year-old Ricky Aragon Jr. A social worker visited his grandmother's Albuquerque foster home once in the six months before Ricky was beaten to death.
Monthly social worker visits were required but a court document filed by the state said the social worker "just didn't have time."

Advocates for children say the changes are a good start but won't solve all the system's ills.
More emphasis should be placed on retaining good foster families, better screening of foster parent applicants and lowering social worker case loads.
"Right now children aren't protected by state foster care. We can't guarantee that anymore. We can't say, 'Mr. and Mrs. Jones, your child will be fine (in foster care) until we can reunify the child with you,' '' said one Children's Court attorney.
Foster homes are supposed to be safe, temporary havens for abused or neglected children removed from their biological parents.
Once parents correct their deficiencies, the state typically returns the child. If the parents don't alter their behavior, parental rights usually are terminated and the child is put up for adoption.
Children's Court attorneys and others say the majority of New Mexico's foster parents are dedicated, hardworking and competent.
But horror stories about foster care are more commonplace, and the injuries to children more shocking.
"It's just horrendous to think children who are neglected, as bad as that can be in some cases, have entered state custody and are sexually abused," said one lawyer. "They would have been better off staying at home, at least in hindsight."
CYFD officials say foster home abuse is rare.
Nationally, less than 1 percent of foster families are involved in maltreatment allegations, said Linda Spears of the Child Welfare League.
But relying on CYFD data reported to the federal government for 1995, up to 5 percent of New Mexico's foster parents were deemed to have been perpetrators of some type of abuse or neglect.
These statistics are based on abuse and neglect confirmed by CYFD, federal reports show. They don't include cases in which there wasn't enough information to substantiate the complaint.
Experts say abuse and neglect in foster homes is underreported.
Children who have reported abuse by a biological parent can see their entire world turned upside down, especially if they are removed from their homes into foster care.
So they may be reluctant to tell anyone if they are re-abused by a foster parent, said Mike Hart, an Albuquerque lawyer who worked for CYFD in the late 1980s.

Lawsuits signal problems
"They wouldn't be paying as much money on some of these cases if there weren't some major problems."

Nationwide, abuse is more prevalent in foster families than in the American population at large.
More children are entering the system from drug- or alcohol-abusing families; they are younger than ever before; and are more apt to have suffered serious harm at the hands of their parents.
"I think there's a problem all over the country," said Virginia Gilmer, a former CYFD official and a recognized child-welfare expert. "I think kids are harder to handle, and foster parents, because of the turnover, are less experienced, and there's a higher risk."
Because foster care cases are confidential by law, abuse comes to light in New Mexico only if foster parents are prosecuted or a lawsuit is filed.
The number of lawsuits alleging foster care abuse has surged in New Mexico the past several years. Settlements of such cases have cost more than $4 million.
Five civil rights lawsuits are pending, and CYFD has been put on notice that another 24 could be filed.
Most have alleged sexual abuse. Several involved foster children CYFD placed with relatives.
The lawsuits signal something is seriously wrong, many lawyers say.
"They wouldn't be paying as much money on some of these cases if there weren't some major problems," said Elizabeth Simpson, an Albuquerque lawyer.
Some say what appears to be a rash of cases could be due to better reporting. Others disagree.
"There are more lawsuits because more bad things are happening to kids in the state's custody," said Peter Cubra, head of Advocacy Inc., an Albuquerque corporation that provides lawyers for abused and neglected children.

Foster-home counseling
"Some of the places that they take
them to are not the Brady Bunch.
It's a real complex thing."


Lenway's case didn't generate a lawsuit. But she said CYFD closed the foster home last year.
The foster family involved had become emotionally abusive, and a biological child in the home had been reported as having been physically abused.
Initially, Lenway tried to get services for the foster mother.
When the problems didn't get better, "We told the department we wanted these children returned home rather than stay in this foster home," Lenway said.
By returning the children, "I figured that at least ... we could accomplish more and require the family to go to parenting classes and get into counseling. Whereas we can't require foster parents to be in counseling."
But CYFD, which licenses the foster homes, has more leverage.
Pat Briggs, who works with a Bernalillo County citizen review board that monitors children in state custody, said CYFD has started to put intensive family preservation services into foster homes to try to keep them viable.
"It's been used with foster parents who may use questionable discipline," Briggs said. "Instead of pulling the child out immediately, because it's real damaging to a child to keep moving, they (CYFD) will support and train that foster home. Sometimes it's been appropriate, but sometimes you think, 'Oh, just pull those kids.' ''
Because there are too few foster homes, social workers don't have a lot of choices in housing mistreated children. This is especially true in rural New Mexico.
"They (social workers) are up to their necks in alligators convincing the court to get the kid away from (the biological) mom whose got three crack babies and her boyfriend is sexualizing both the boys and the girls," said George "Pat" Bryan, an Albuquerque lawyer who defends social workers for CYFD in civil cases.
"And so they just do a big sigh of relief when they get them out of there," he said. "But some of the places that they take them to are not the Brady Bunch. It's a real complex thing."
Bryant said either there needs to be fewer troubled kids or more suitable foster parents.
Ideally, CYFD officials say, New Mexico needs 1,800 to 2,000 foster homes. At last count, the state had 732.

Background checks
"It's a tragedy and it's a thing we were not even aware of and shouldn't have happened."

Lawyers who have filed lawsuits against CYFD say if abuse in a foster home "just happened," they wouldn't have a case.
They say they end up suing when evidence surfaces that CYFD should have known about the abuse, or failed to follow up on red flags.
For instance, the state has been put on notice that several lawsuits may be filed stemming from alleged abuse of children at an Albuquerque foster home.
Bernalillo County sheriff's deputies in November arrested Richard G. Anderson, 39, on charges he molested at least three children at a South Valley foster home.
The alleged molestations occurred between Jan. 1, 1993, and May 1, 1996, at the foster home run by his parents, sheriff's reports and a criminal complaint contend.
CYFD spokesman Eddie Binder said confidentiality laws prevent him from discussing the case. But he said that typically when such allegations arise in a foster home, CYFD removes all children and the foster-care license is revoked.
Criminal charges against Anderson were dropped temporarily Nov. 15 to allow sheriff's investigators to gather more evidence to present to a grand jury.
"He's not off the hook. It (the investigation) is very, very active," Assistant District Attorney Patrick O'Neal said early this month.
Anderson, a schizophrenic who was on medication, lived at the home at the time of the alleged molestations, the complaint states. CYFD policy at the time required interviews of all people in a foster home before that home is licensed.
CYFD won't say how long the Andersons had been licensed foster-care providers, nor how long Anderson had lived there.
But a year prior to the alleged abuse, a July 5, 1992, Albuquerque police report states that Anderson, then 34, had been writing a 13-year-old girl letters, suggesting she have sex with him.
Anderson wasn't charged, but police urged the girl's father to file a restraining order.
Anderson's mother, Marilyn Anderson, said in a brief telephone interview that she and her husband had been foster parents "a long time. But this was something that just came up at the end. So it's a tragedy, and it's a thing we were not even aware of and shouldn't have happened."
She wouldn't elaborate further, saying she preferred the Journal not mention the case until it is resolved.
CYFD officials say confidentiality laws bar them from commenting on whether social workers knew about the 1992 police report.
In January, the agency unveiled new foster-care licensing regulations requiring a criminal-records check of all applicants and of any other adult in the home.

Judges complain
"If they want to get my attention, they should pick up the phone and give me a call."

Though the abuse cases make the headlines, complaints are more common that children in foster care aren't receiving adequate physical, mental health or educational care.
Some children's lawyers say department employees have drawn the ire of some judges because they failed to obey court orders requiring treatment of children.
Children's Court judges are finding foster children going without court-ordered special education, visits to the doctor for medical conditions or necessary dental work.
But matters in Children's Court are confidential by law, so no lawyers would talk publicly.
Several said they hoped the damage lawsuits would alert the agency that reforms are past due.
Wilson disagrees.
"You don't learn from lawsuits," she said.
"You don't sue to change a system. People sue in order to get damages. If they want to get my attention, they should pick up the phone and give me a call."

Copyright © 1997 Albuquerque Journal