Legislator Muzzled

May 14, 2007 permalink

Here is another case of a legislator being bullied by a child protection agency. In this case a Tucson Arizona representative, Jonathan Paton, is subject to prosecution if he says what he knows about the deaths of three children under watch by child protectors. We earlier reported on Ed Dugay in Maine who also got pushed around by the same kind of agency.

Do you think you can help your case by calling your MP or MPP or Senator or Congressman? Don't bother. He can't do anything even if he tries.

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Ariana Payne

The Arizona Daily Star, Published: 05.13.2007

CPS privacy rules getting new scrutiny

Local kids' deaths raise questions on agency's openness

By Josh Brodesky, ARIZONA DAILY STAR

Tucson, Arizona

The refusal of state Child Protective Services to release details about its connection to Tucson children who died this spring under its watch has raised concerns among some state lawmakers and advocates for open government.

They're concerned that the agency's need for confidentiality has outweighed the public's right to know.

CPS maintains that releasing information to the public violates confidentiality laws, though state law allows case summaries for children who die from abuse or neglect to be made public.

At issue is the agency's role in the deaths of Tucson children Ariana Payne and Brandon Williams and the suspected death of Ariana's brother, Tyler Payne.

"I think the public has a right to know how tax dollars are being spent and how state agencies operate," said Rep. Jonathan Paton, a Republican from Tucson who is part of legislative hearings to examine CPS' role in the two Tucson cases.

Paton is one of a handful of people to review CPS' files for the Payne and Williams cases, but he can't comment on what he's learned because of confidentiality. State law mandates that lawmakers sign confidentiality agreements if they are to review CPS cases.

"It's a misdemeanor of some sort," Paton said, explaining what would happen if he talked about the cases or hearings. "I'm not sure what the level is, but it's serious enough that I don't want to risk it."

Citing a lawsuit filed by the Arizona Daily Star seeking the Payne case summary, CPS spokeswoman Liz Barker Alvarez declined to comment about the agency's use of confidentiality laws. She referred any specific questions about the Payne case to the Attorney General's Office.

CPS was thrust into the spotlight after police discovered 4-year-old Ariana's body Feb. 18 in a plastic tub that had been placed in a trash bin. Her body had been kept in a locker at a storage facility. The body of her 5-year-old brother, Tyler, has not been found despite two searches at Los Reales Landfill, 5300 E. Los Reales Road, where police believe he may be buried.

The children's father, Christopher Matthew Payne, has been charged with two counts of murder.

Court documents and police reports show CPS had been working to help Payne gain custody of the two children.

In the other case, on March 21, Brandon Williams, 5, died after his mother and another woman gave him multiple doses of medications.

CPS has said investigators "made repeated attempts" to find Brandon and his mother, Diane L. Marsh. Marsh has been charged with first-degree murder.

Kids' safety and well-being

Under state and federal law, state CPS case reports are confidential and that is, in part, to protect against false or unsubstantiated reports, said Dan Barr, a Phoenix attorney who is representing the Star in its suit for the Payne case summary.

However, Barr said much of the state's public-records law surrounding CPS balances on whether the release of information will promote or hinder the safety and well-being of children, and that it expressly outlines times when information should be released.

"You withhold the information if it's to promote the safety and well-being of children, but if that goal is promoted by releasing it, you release the information," he said.

With a suspect arrested in the Payne case, and Ariana dead and Tyler believed to be dead, Barr said he thought the release of the case summary could only help to prevent future deaths.

"If something can be learned so that a better decision can be made in another case, then that's certainly beneficial to promoting the safety and well-being of children," he said. "You can't have a meaningful discussion without the facts."

In the Payne case, it's unclear what CPS did or didn't do — even for the family members involved.

Police reports show that in March of last year the children's mother, Jamie Hallam, called police to ask for their help in recovering her kids from Payne, who had kept them for more than six weeks.

Hallam had a court order for sole custody, but when police arrived at Payne's West Side apartment, Payne said he was working with CPS to get custody.

The officers called CPS and spoke with a supervisor who said it would be best to keep the kids with Payne because the agency was investigating Hallam. Records show that the investigation into Hallam ended a month later.

Hallam's grandmother, Linda Cosentino, who lives in New Jersey, said the family was never notified that the investigation was closed until she called CPS out of concern for the welfare of the kids.

"We don't understand why she could not get her kids when she had the court order," Cosentino said.

State law also allows for the agency to release case information to confirm or correct information from outside sources, but Barker Alvarez declined to comment about Cosentino's assertion.

"I can't speak to a particular case," she said, citing the Star's lawsuit. "When we are finished with our investigation, we are required to notify the person who is the subject of the allegation, and that is who we notify."

Despite the lack of public information, Barker Alvarez said there are a number of internal controls to assure the proper handling of cases. Those controls range from attorney representations for parents at dependency hearings, which are not open to the public, to an independent foster-care review board, to a family-advocacy office where grievances can be filed and private legislative hearings conducted, such as the ones in which Paton is taking part.

She declined to answer a question about how not releasing case information might shape the agency's image.

However, Paton and Barr both said they thought the agency was taking a hit.

"I think that the current confidentiality laws that exist, one, prevent this agency from receiving enough scrutiny," Paton said. "Two, I think they hurt the agency in the long run because I think that people develop a lot of conspiracy theories in absence of what's going on."

● Contact reporter Josh Brodesky at 807-7789 or jbrodesky@azstarnet.com.

Source: Arizona Daily Star

Addendum: A few days later another Arizona paper called for reform as well.

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The Arizona Republic

What's left to protect?

May. 20, 2007 12:00 AM

Arizona's Child Protective Services uses unconvincing arguments to deflect public fears about the agency's ineptitude.

By withholding information on the grounds of confidentiality, CPS gets to bury its mistakes along with the dead children it was supposed to protect.

The Arizona Republic is one of two state papers demanding more openness from the agency. This is not done for reporters' egos or institutional nosiness. As The Republic's filing says, what's at stake is the public's "ability to monitor state government's performance of one of its most basic and important duties: safeguarding children from abuse, neglect, injury and death."

The public - you - cannot measure the agency's effectiveness prior to the deaths of three Tucson children without more information.

What's known - from court and police records - is that the mother of Ariana and Tyler Payne had a court order giving her sole custody. When she called police to help her reclaim the children after a visit to their father, Christopher Matthew Payne, he told officers that CPS was working with him to regain custody. CPS subsequently told the police to leave the kids with the father because they were investigating the mother.

The father is now charged with two counts of murder. Four-year-old Ariana's body was found Feb. 18 in a trash bin. Two searches of a local landfill failed to find her 5-year-old brother, though police believe his body is there.

CPS stands behind a claim of confidentiality and refuses to release information. State and federal law calls for confidentiality to protect the identities of child victims and adults who might be falsely accused.

The children in this case are dead. The man accused is facing public trial.

Who is being protected?

Another child whose story is being withheld is 5-year-old Brandon Williams. His mother is accused of first-degree murder in his March 21 death.

The boy's school had alerted CPS when he stopped attending class. CPS failed to find him, but a Pima County Sheriff's deputy located the mother after a missing-person report.

The deputy saw Brandon with bandages covering legs that had been dipped in scalding water. The deputy didn't know about the CPS involvement and accepted the mother's explanation that the child had fallen into cactus.

This failure of two public agencies to communicate was fatal. Brandon subsequently died of a drug overdose.

Again, CPS refuses to release full information about the case.

Again, the only obvious beneficiary is the agency that should have done more for these kids.

CPS may, indeed, feel legally bound to withhold information. If that's the case, then lawmakers should make it even clearer in statute that secrecy is not the same thing as privacy.

Confidentiality is not about covering up.

Source: Arizona Republic