Silence of the Lambs

CPS would rather shut up than deal with scrutiny

By Sarah Fenske, Published: September 27, 2007

The calls come to my voice mail with depressing regularity. At least once a week, sometimes more.

Matt Mignanelli

"Please help me," callers beg. "Child Protective Services stole my kid."

The stories that follow are unique only in the details. Mom or Dad insist that they've done nothing wrong. And even if they did, once, they swear they've turned things around. They're doing everything they can, but they can't seem to make any progress in the system.

Please, they say, can't New Times get to the bottom of what's happening with their case?

The short answer is, no. We can't.

And that's just the way CPS likes it.

The fact is, unlike trials for embezzlement or murder or even rape, CPS dependency hearings, which determine custody and whether parents continue to have the right to raise their children, are closed to the public. The agency's paperwork is also sealed.

And that means the entire system operates without scrutiny from outsiders, be they reporters or advocates. (There's a state ombudsman, but he is legally barred from releasing specifics about cases.) We never get to see the evidence that would determine whether kids are wrongly being taken from their parents, as so many callers insist on my voice mail, or whether CPS is instead erring on the side of leaving kids in unsafe homes.

We can write about the big picture because CPS has to release some statistical information every six months. But we can't look at the heart of the system: the individual families who are forced to deal with it. Even when those families are crying out for their cases to be reviewed, we simply can't get enough information to determine what's really going on.

Our tax dollars pay for this system. Even more importantly, we all depend on it to protect our state's youngest and most helpless citizens.

None of us has any idea whether it's working.

Here's the good news: An Arizona state senator plans to introduce a bill that would let the sunshine in. Senator Linda Gray, R-Mesa, wants changes for CPS that include opening up dependency hearings and paperwork.

It's a really good idea, one that the Legislature needs to follow through on. And if Governor Janet Napolitano is serious about improving CPS, as she's claimed, she, too, must get onboard.

In the past two decades, 17 other states have opened dependency hearings to the public. As far as I can tell, not one has reported major problems with open hearings. And this should tell you something: Not one has since reverted to a closed system.

More recently, Arizona tried a pilot program to open a small number of cases — about 10 percent — to the public. A report, prepared by an ASU graduate student at the conclusion of the pilot program last year, found no real problems with increased openness.

And yet when the pilot program ended, we went right back to closed doors.

I can't understand why. Unless, of course, CPS simply doesn't want anyone keeping an eye on it.

Liz Barker Alvarez, the spokeswoman for CPS, tells me that Arizona has "one of the broadest laws when it comes to sharing information about families involved in the child welfare system."

Maybe — and I think this is a big "maybe" — that's true on paper. But it's definitely not true in reality.

Here's how dependency hearings work in Arizona. Supposedly, anyone — including parents who want help in getting their kids back, or grandparents who insist that the wrong person has been handed custody, or even the media — can petition for the hearing to be open.

But the court rarely seems to take the petition seriously, much less agrees to open things up. I've had parents beg the judge to let me in. Nope, the judge decreed. That was that. I didn't even get a chance to argue my case. And if you think getting into court is tough, getting records is even worse. Public-records laws simply don't apply.

That's why advocates like Richard Wexler, director of the Virginia-based National Coalition for Child Protection Reform, are calling for a "rebuttable presumption of openness." Basically, a hearing would be open unless someone could demonstrate to the judge why it should be otherwise.

Hearings and records should be closed, Wexler argues, only if lawyers for the parents or the child want them closed — and if they can convince the judge "by clear and convincing evidence that opening a hearing or record or portion of a hearing would cause severe emotional damage to a child." Notice that the request would have to come from the parents, or the child's lawyer. CPS wouldn't be allowed to ask for closure.

It's a good idea. Because, for all the talk about how secrecy is necessary to protect children, the reality is much different.

When the doors are closed, it can be easier to focus on keeping the wheels turning than on achieving true justice. One example: As my colleague Paul Rubin reported earlier this year, lawyers who handle CPS dependency hearings sometimes don't even meet their clients until they get to court ("Outrageous Fortune," April 19). Rubin also found lawyers taking on as many as 500 new cases a year.

No wonder these parents are feeling bereft of representation!

Earlier this year, I wrote about Robin Scoins, a Surprise woman whose son was "stolen" by the agency. While she was pregnant, Scoins had taken medication known to cause a false positive on drug tests, but after her postnatal test came back positive for "amphetamines," CPS wouldn't listen to her protestations of innocence and took away her infant son. It didn't matter that the baby had never tested positive for any drug. Or that Scoins subsequently passed several drug tests ("Public Enemy Number One," March 22).

Scoins now has full custody of her son, but she devotes much of her time to advocating for families stuck in the CPS system. In that volunteer role, Scoins regularly has to fight to get into hearings and then has to fight to stay. (Keep in mind, these are cases she's attending at the express request of the families involved — she is way too busy to seek out cases where she isn't wanted.)

In one case, Scoins tells me, the judge kicked out a child's biological grandfather. His crime? CPS thought he'd shared paperwork from the case with Scoins, a charge the grandfather denies. The lawyer representing CPS actually asked the judge to hold the man in contempt of court for supposedly sharing the "secret" file.

Seriously.

There's a bigger picture to all this, and it has to do with accountability.

As I wrote last year, after Janet Napolitano was elected governor, she vowed to reform CPS ("Suffer the Children," October 26, 2006). But her call to remove children first and ask questions later had serious repercussions for an already-stressed system. The number of kids in foster care skyrocketed. Caseloads increased to the point of insanity — and that meant fewer kids in foster care got regular visits from the workers assigned to keep an eye on them.

Napolitano's actions were triggered, in part, by a series of violent deaths. Too many parents were killing their kids even while caseworkers were supposedly monitoring them. Err on the side of the safety, Napolitano instructed. Get the kids out and into foster care.

But the sad truth is that even with the dramatic increase in kids in foster care, the number of children dying from abuse or neglect has only increased. The number of kids slain while CPS was supposedly monitoring them hit a record high in 2005, the last year for which we have complete data ("Death Watch," December 14, 2006).

So, more kids are in foster care — even at a time when serious studies have concluded that foster care, shockingly, is even harder on kids than mild abuse or neglect. And, there's still been no decline in murder rates.

Last month, the Arizona Daily Star ran a story that highlighted many of the statistics that I reported last year. Hot in the middle of a re-election campaign, Napolitano had refused to talk to me. But she did talk to the Star.

And this is what she said: The statistics are irrelevant.

"I think taking isolated statistics out of thin air without attachment to particular cases is not helpful," the governor said.

Does anyone else see the irony? Here the guv is saying that statistics are meaningless and that we need to look at particular cases. But rather than open up the courts, and records, so we can do just that, the agency has fought to keep each particular in a shroud of secrecy.

Heck, even after two toddlers were murdered earlier this year in Tucson, the Star and the Arizona Republic had to sue to get CPS to release its files on the children's case. (Typically, CPS releases a summary of its files after a child dies. In this case, the papers wanted more.)

Don't tell me that CPS was protecting these kids' privacy. The kids, remember, were dead.

Napolitano's spokeswoman says that the governor is in favor of making CPS "as open as it can be." I hope she's sincere — but I have to wonder why, in that case, all dependency hearings were closed immediately after the end of the pilot progam.

Indeed, Alvarez, the CPS spokeswoman, suggests that it may be useless to open dependency hearings. People just aren't interested. "Very few members of the public or the media attended any of the hearings," she says.

It is true that while the ASU study shows that more than one-fourth of the open hearings attracted the attendance of a "non-party," only seven hearings were, in fact, attended by a reporter. That's 1 percent of the open hearings in Maricopa County — and a truly shameful statistic.

But buried in that same report is an e-mail that an anonymous lawyer in the system sent to the ASU researcher. That e-mail, I think, makes it clear that the lack of attendance wasn't simply a sign of lazy reporters. (Although, trust me, I know that was a factor, too.)

"If more members of the public knew that hearings were open, more people might come, and then CPS would be more accountable," the lawyer wrote. "Parents generally don't want the hearings open, but in the cases where parents would want the press, or other members of the public, present . . . CPS can object, [meaning] there is no way to ever get members of the press or the public into a hearing!

"The open-hearing law," the lawyer concluded, "has no teeth!"

It's time for the Legislature to fix that. And it's time for Governor Napolitano to put her political talents to work protecting the children in the system, not CPS. We owe it to these kids to keep an eye on what's really going on — and we can't do that without more openness.

Source: website of the Phoenix New Times