Press one of the expand buttons to see the full text of an article. Later press collapse to revert to the original form. The buttons below expand or collapse all articles.
Protecting Your Own
September 24, 2012 permalink
After the marriage of Indiana Department of Child Services Director James W Payne's daughter broke up, he moved in court for custody of his two grandchildren. But he didn't wait for the court. DCS made the placement before the court could hear the motion. Later, Payne was accused of slapping one of his grandchildren in the face, and the agency had to find an outside social worker to investigate the allegation. When the children had to be transported to other family members for visits, DCS paid the bill, something it does not always do. When political opponents questioned his actions, Payne claimed confidentiality. He was soon forced out of office.
Fixcas has heard many claims of conflict of interest, usually when a social worker is related to one of the parties in the case. This is one of the few to reach the press.
DCS chief James Payne fought his own agency over family matter
Indiana Gov. Mitch Daniels said Monday he has accepted the resignation of embattled Department of Child Services director James Payne.
The resignation comes after the Star's investigation into Payne's actions involving a DCS neglect case involving his grandchildren.
Posted 9:55 PM, Sep 22, 2012
Department of Child Services Director James W. Payne waged a behind-the-scenes fight to discredit and derail his agency's recommendations in a child neglect case that involved his grandchildren.
Payne's actions -- uncovered by a months-long Indianapolis Star investigation -- crossed ethical lines, experts say, and likely violated his agency's code of conduct.
Even as he ran DCS, Payne became deeply immersed in the case, which began in 2010 when his grandchildren were taken from their mother by his agency as she was locked in a nasty divorce and custody battle with Payne's son.
It wasn't DCS' removal of the children, however, that Payne opposed. What put him at odds with DCS was his agency's push, about nine months later, to end the neglect case and permanently reunite the children with their mother.
Payne, in written responses to questions from The Star, stressed that his only role in the case was "as a grandparent, father and husband," and not in a professional capacity.
At no point during his involvement in the case, however, did Payne step aside from his leadership role with the agency -- a move ethics experts say would have been appropriate.
The Star's investigation, based on a review of hundreds of pages of documents related to the DCS and divorce cases, found:
Payne became directly involved in helping his son fight DCS, including consulting with his son's attorney and drafting a legal brief highly critical of his agency's work in the case.
The Code of Conduct that Payne instituted at DCS forbids employees and top officials from "personal and private interests" such as intervening in a case involving relatives.
Payne did not notify Gov. Mitch Daniels of his deep involvement in the DCS case or let the governor know that he at one point became the target of an investigation into whether he slapped one of his grandchildren while the child was in his care. The child abuse allegation did not prompt an independent probe. Instead, Payne, who denied the allegation, was investigated and cleared by his own agency.
Payne received transportation assistance for the children through DCS, which is not available to all families, despite earning more than $130,000 and having a state-issued vehicle.
Payne was drawn into the case with his own agency through a family fight that continues after more than two years behind the closed doors of courtrooms, first in Hamilton County and now in Marion County. That drama has the elements of a tabloid tale: strippers, drunken driving, a private investigator, paternity tests -- even bigamy.
Payne's involvement as a grandparent, ethics experts say, was a role that every citizen -- including the DCS director -- has the right to assume. But as director, they say, he needed to avoid even the appearance of a conflict of interest.
"At a minimum, this is an incredible, inherent conflict of interest," said Elizabeth Harbeck Voshel, a University of Michigan professor who has chaired a state ethics committee on social services since 1985.
"I think anyone with even a common person's eye would raise their eyebrow and say, 'What, what, what was he thinking here?' "
Payne said the "governor's staff knew my grandchildren had been placed with my wife and me" and added that such DCS cases are confidential -- "even for my grandchildren."
That statement appears to contradict the response a Daniels spokesman provided to written questions submitted by The Star. Daniels appointed Payne in 2005 to the cabinet-level post, tasking the former Marion County juvenile court judge with turning around Indiana's long-troubled child welfare system.
"The governor," Jake Oakman responded, "has no knowledge of any of the questions you raise in your email."
Even the appearance of a leader's impropriety can be damaging to an agency such as DCS, said Frederic Reamer, a professor at Rhode Island College who chaired the task force that wrote the Code of Ethics for the National Association of Social Workers. While Payne is not a social worker, Reamer said the tenets of that code apply because of his role in running DCS.
"One of the qualities one wants in the administrator of a department with this kind of responsibility is impartiality and neutrality," he said.
"There should not be any hint of evidence that one is playing favorites, one is engaged in any behind-closed-doors efforts that could compromise his and the department's integrity."
DCS removes children
How Payne came to oppose his own agency -- and actually advocate for his grandchildren to be kept in the system he runs -- is rooted in the divorce and custody fight between his son, John, and John’s wife, Heather.
Heather Payne filed for divorce against John Payne in December 2009, 10 days after her husband was arrested for the third time during their marriage for drunken driving.
Heather Payne also sought and received a protective order and custody of their four children -- two fathered by John Payne.
Less than two months after the divorce filing, James Payne, a lawyer, filed a motion on his own behalf in the divorce case, seeking visits with the grandchildren. Grandparents typically have no standing in such matters while a divorce case is pending, and the judge denied his request.
The fight grew more contentious in early March 2010, when Heather Payne's attorney filed a notice that she intended to move with the children back to North Carolina.
Records obtained by The Star reveal it was around that time that a private investigator began keeping tabs on her. It is unclear whether her husband -- who was now living with his parents and just months earlier had qualified financially for a public defender in his drunken driving case -- was paying for the investigator or someone else was.
The next month, a motion filed by John Payne's attorney asked the court to remove the children and place them with their grandparents. The brief alleged their mother "continually left the children alone" and did not return "until anywhere from 4 a.m. to 7 a.m. or later." During those absences, the motion said, she left her oldest child to care for the younger children.
The legal brief also alleged that Heather Payne, who declined to be interviewed for this story, was working as a stripper.
The judge set a telephone conference with the attorneys representing the couple for May 20, 2010.
But the night before that conference call, the children were removed from their mother and placed with their grandparents -- not by the divorce court, but by the agency run by Payne.
Someone called DCS and Noblesville police around 10 p.m. on May 19, 2010, making the same allegation against Heather Payne that was central to John Payne's divorce case petition seeking to have the children placed with his parents.
The caller, who is not named in records examined by The Star, reported that Heather Payne left the children -- who ranged in age from 5 to 13 -- home alone and was headed to Ohio.
In some documents, Heather Payne contends it was the private investigator who likely called authorities. She also alleges the investigator attached a GPS tracking device to her car.
Noblesville police, along with Hamilton County DCS case manager Lyndsay Krauter responded to the call.
DCS contacted Heather Payne, who returned to the apartment around 1:20 a.m. Krauter, though, took the children into protective custody "since the children report ongoing incidences of being left without supervision for long lengths of time."
Just hours later, the four children were handed over by the DCS worker to Payne and his wife -- a decision later formalized by the court.
The intervention by DCS came at a time when Heather Payne appeared to have the upper hand in the divorce case. She had retained custody of the children, and her husband was ordered to pay more than $800 a month in child support.
But now that DCS had intervened, the neglect case, by law, took precedence -- even canceling the child support obligation. And, instead of the occasional visits Payne and his wife had failed to secure through the divorce court, the children were now living with the couple.
A DCS case against Heather Payne also would appear to potentially tilt the couple's divorce fight in her husband's favor.
While Krauter handled the DCS proceedings initially, DCS later hired a former Illinois child welfare worker to oversee the Payne case. For the next year, that contract worker, Sandy Downs, would manage the case.
The agency also turned to a lawyer from the attorney general's office, Deputy Attorney General Laura Bowker, rather than use a DCS staff attorney to handle legal matters.
John Ryan, DCS chief of staff, said those steps show the lengths to which DCS officials went to avoid a conflict.
"We were crystal clear," Ryan said in a written statement to The Star, "that we had to approach this situation in a manner that definitively separated Judge Payne's professional role from that of his personal role as a grandfather."
Ryan said that started with Deputy Director David Judkins calling counterparts in neighboring states to see whether any of their agencies could take the case. None could, but Illinois suggested Downs, who was retired but still was a licensed Illinois caseworker.
Given the immediate needs of the case, Ryan explained, Downs was not able to go through mandatory DCS 12-week training.
Instead, Downs was to rely upon Judkins, who served as her contact, Ryan said, "regarding information about policies, procedures and Indiana legal requirements."
Downs' unfamiliarity with Indiana practices and procedures, however, created issues for some involved in the case.
In reports filed by staff from social services agencies that worked with DCS on the case, she was depicted as confused by agency practices and policy, and slow to respond to court orders and services ordered for Heather Payne and the children.
But if monitoring the neglect case was a daunting task, it was nothing compared to the challenge soon thrown to Downs, who did not respond to messages from The Star.
On Aug. 11, 2010, DCS received a report that was a potential bombshell: The DCS director had been accused of slapping one of the children "across (the child's) face." Downs now had to investigate this delicate and serious allegation. And because of the unique chain of command under which she worked, she was reporting to Judkins, who reported directly to the person being accused: Payne.
In his written response to questions from The Star, Payne denied striking his grandchild: "It never happened, never would, and the allegations were unsubstantiated by an out-of-state case manager."
"Gramps is the boss"
The allegation that Payne struck one of the children surfaced about two months after they were taken from their mother and placed with the DCS director and his wife.
A counselor from a nonprofit agency hired by DCS to work with Heather Payne and the children reported that two of the children told her "Gramps" hit one of them in the face. The blow, they said, was prompted by the child's disrespectful behavior.
The counselor, following Indiana law, reported the incident to DCS.
It's not clear who was made aware of the allegation beyond Downs and Judkins, but Payne at no time stepped aside while he was under investigation by his own agency.
A DCS report detailing the investigation says Payne came to the Hamilton County DCS office in Noblesville to be interviewed by Downs.
Payne denied the allegation, Downs noted, telling her, "I don't believe in corporal punishment."
In separate interviews with Downs, both grandchildren described the alleged blow to the face.
One of the children also was aware of the challenge facing Downs: "Gramps is the boss over you and everyone here and you'll get in trouble if you don't do what he wants."
In her final report, Downs cleared Payne, stating there was not sufficient evidence to substantiate the allegation.
Downs detailed her rationale: "Although both (children) stated that it did happen, they differed in degree."
One child said Payne struck the other child "across the face with his whole hand," Downs explained, "whereas (the other child) said it was more across (the child's) mouth."
The report didn't mention that any such blow -- regardless of the "degree" or where it landed -- would violate DCS policy prohibiting corporal punishment by court-appointed caregivers such as Payne.
Payne's grandchildren remained with the DCS director and his wife during -- and after -- the investigation of the slapping allegation.
Serving as a surrogate parent, Payne regularly interacted with workers assigned to assist the children, including Downs, as well as staff from nonprofits that work with DCS.
For about a month in the fall of 2010, another service was provided by DCS: the children's daily transportation from Payne's home to their schools and for the children's visits with their parents and to some other appointments.
A policy directive issued by Payne just months earlier said such transportation service "should be considered only after other options for obtaining transportation have been explored."
There was no explanation provided for why Payne -- who earns $132,600 a year and had a state-issued vehicle -- or his wife needed the DCS transportation assistance.
During this time, Payne also continued to be increasingly involved in the legal issues surrounding his grandchildren and their parents.
Payne appeared at many of the court hearings at which his agency and DCS partners presented evidence, reported on evaluations and provided other case updates.
Concerns about Payne's actions
It was also in late 2010 that, according to case records, Payne's actions prompted workers to note concerns about their interactions with the DCS director.
The first incident, in early November 2010, involved a visit with the children's mother that had to be rescheduled because the person supervising the visit had a scheduling conflict.
Everyone agreed to the switch, but Downs called the supervisor just hours before the visit to say Judkins had informed her that the visit would need to be rescheduled again.
"Apparently, I don't know, the Paynes weren't happy" with the new time, Downs told the therapist in a voicemail. According to the therapist's notes, Downs later told Heather Payne the decision "was made over her head" and provided her with Judkins' phone number.
Another report filed 10 days later, also from a visit supervisor, detailed a confrontation with Payne during a visit the children had with their father at Payne's home.
Payne didn't like a particular visitation rule and called Downs to complain. He also complained to the visit supervisor in a way, she described in her notes, that made her feel uncomfortable.
"(Worker) let James Payne know that she is the 'little guy' in this and must follow instructions from supervisors, as well as standard visitation rules . . ."
That appears to be the last time a therapist from the nonprofit service provider monitored the children's visits with their father. Records don't indicate why, but future visits were supervised by Payne and his wife.
Questions about children's visits with father
On Nov. 24, DCS moved forward with a plan that would put the agency and its director on opposing sides in a fight that would be waged over the next seven months.
The agency returned the children to their mother for a "trial reunification" -- a move approved by Judge Steven R. Nation.
So while the children now lived with their mother, they continued to have visits with John Payne -- specific time set aside by the court for the children to be with their father. But now those visits were supervised by the Paynes.
Call reporter Tim Evans at (317) 444-6204 and follow him on Twitter at @starwatchtim.
Source: Indianapolis Star