Lifting the Veil of Secrecy

Following the deaths of several abused kids in Tucson, lawmakers aim to reform Child Protective Services

Child Protective Services faced some damning headlines in 2007.

First came the gruesome discovery of 4-year-old Ariana Payne's rotting body in a Tucson storage locker on Feb. 18, 2007. Ariana had suffered from fractured ribs, and her spine had been broken around the time of her death, according to her autopsy.

Ariana's brother, Tyler Payne, who would have been 5 years old when Ariana's body was discovered, is missing and presumed dead.

The children's father, Christopher Payne, is charged with first-degree murder and child abuse. His girlfriend, Reina Gonzalez, faces charges of child abuse.

State records show that in April 2006, CPS had closed its investigation into the Payne siblings' welfare. About a month earlier, when police attempted to enforce a court order to return the children to the custody of their mother, Jamie Hallam, CPS officials advised police to leave them with Payne, because they feared Hallam was using meth.

An internal review by an independent auditor revealed that CPS staffers failed to investigate whether Christopher Payne was a fit guardian for the children, and that "the work in this case fell short of the standard for best practice."

Then came the death of 5-year-old Brandon Williams after he was rushed to the emergency room in March 2007. Williams was killed by blows to his head, according to a subsequent autopsy that showed the badly beaten autistic child's body was marked with burns and rope lacerations. A deadly cocktail of aspirin, Tylenol, Benadryl and caffeine was racing through his bloodstream.

Brandon's mother, Diane Marsh, now faces first-degree murder charges. Police say she told them she would force Brandon to stand in scalding water and tie him down as punishment. The night he died, she gave him 12 Tylenol pills.

About a week before Brandon was rushed to the emergency room in March, a Pima County sheriff's deputy stopped by the motel where he was living with his mother and noted that the young boy had a thick layer of bandages around his knees. Marsh told the investigating officer that Brandon had fallen into some cactus.

CPS officials, who had been searching for Brandon for months because they feared that he was in danger, did not alert the police about their concern. As a result, the deputy left Brandon with his mother.

As reporters probed these stories, other documents began to leak out from CPS offices. Among them: A report revealing that a CPS supervisor was dating a man she had once investigated. A CPS investigation showed that children were still being abused in the home; the CPS supervisor, who left the agency after the media reports, denied she had witnessed any abuse.

The spate of incidents caught the attention of state Rep. Jonathan Paton, who has teamed up with Rep. Kirk Adams of Mesa to sponsor a half-dozen bills the lawmakers say will improve CPS by opening up more files to the public and forcing the agency to work more closely with police and prosecutors.

"I realized that if we didn't do something now, I would be wondering later: Could I have prevented more deaths?" says Paton.

The most controversial of the bills--so far--is House Bill 2454, which requires CPS to release records when a child who had fallen under CPS supervision dies or nearly dies.

In the wake of the deaths of Williams and the Paynes, the media requested CPS case files to learn what steps the agency had taken to protect the children after earlier reports of child abuse. But officials refused to release the files, saying that it could jeopardize ongoing criminal investigations.

A lawsuit by a group of media organizations eventually forced the release of the files. That's when embarrassing details emerged about how CPS officials had advised police to leave the Payne children with their father--without ever doing a background check on him. A review of records would have revealed that Christopher Payne had a history of domestic violence and drug charges.

Jamie Hallam has now filed a lawsuit against the state, saying that CPS officials erred by advising police to leave the Payne children with their father. CPS had been investigating whether Hallam, who had another child who was born in October 2006, was abusing meth.

Because of that litigation, CPS officials cannot discuss details of the Payne case, says Janice Mickens, child welfare program administrator for CPS.

The released records also showed that a judge had ordered CPS to check on Brandon Williams months before he was killed, but agency officials had trouble tracking him down.

Since Brandon's father is taking legal action against CPS, agency officials are prohibited from discussing that case as well, Mickens says.

Paton first took an interest in the files when he found out that CPS would not release them. He was able to arrange a confidential review of the files and was disturbed when he learned that CPS had ignored the court order giving Hallam custody of the Payne children, and had not alerted law-enforcement officials that they feared for Brandon Williams' safety.

"When I found out what really happened, I realized that if the public knew what was in these records, they would demand change," says Paton, who was prohibited from discussing the documents he reviewed.

"I realized something was terribly wrong when CPS told me: 'You can't even talk about this in an oblique way of saying something's wrong,'" Paton adds. "I started wondering why we have these confidential records in the first place. They exist to protect children. They don't exist to protect the agency or the criminals."

As the stories about CPS continued to make headlines, the agency announced several policy changes. Officials loosened their grip on public records, instituted a new ethics policy that prohibited CPS employees from dating former clients and started looking into custody records before placing children with family members.

"Sure enough, when the records were released, there was change," Paton says. "The results of opening up those records were more of the operational changes that we're looking for."

Paton concluded that if CPS officials knew that the public would be likely to see the records, they would pay more attention to proper procedure.

"They're going to be more accountable," Paton says. "People put forth their best effort when they know they are being watched. Shouldn't we want that when we're dealing with children?"

HB 2454 would require CPS to "promptly" release records when a child dies or nearly dies. Anyone who has been denied records can take the agency to court, where a judge can determine if the release would jeopardize a CPS or criminal investigation.

Paton's bill easily passed the House Government Committee, but stalled before a floor vote earlier this month, when Rep. Linda Lopez of Tucson proposed an amendment that would have limited the information to be released to the name of the child, the name of the abuser and a summary of how the child died or nearly died.

Lopez said she was concerned about releasing additional information, because it could include the names of people who were involved in the case but had nothing to do with the deaths, such as siblings, grandparents or confidential informants. She suggested that could conflict with the federal Child Abuse Prevention and Treatment Act, which could threaten what she estimates to be $118 million in federal funding.

"That was the basis for my amendment," says Lopez.

Paton says the restrictions that Lopez proposed would have decreased the public records that would be available after a fatality.

"It didn't just gut the bill," Paton says. "It gutted the public-records law, in my opinion, which goes counter to the whole public-records law in the first place. It restricted information."

Lopez rejects accusations that she pushed her bill to protect CPS.

"I have worked with CPS for many years, both as a foster parent and when I ran the child/family center at La Frontera," says Lopez. "I know that they are not perfect. They are made up of human beings who, by nature, have problems that go along with them."

Lopez's amendment never came up for a vote, because Paton held the bill.

He spent part of last week negotiating changes with Napolitano's staff. Earlier this week, he said the first draft from her office "is too restrictive, but I think there's room to work on it." He hopes the bill will come to a floor vote this week.

Another of Paton's bills, HB 2599, would require CPS workers to tell police when they believe a child is missing and in danger. The names would be flagged in state and national databases, and officers would have the authority to take children into custody if they feared they were at risk of serious harm.

"Between 400 and 700 kids go missing every year (in Arizona), and CPS can't account for them," Paton says. "If we can bring any sort of communication between CPS and law enforcement that would possibly help in finding and checking on the welfare of these kids, I think that's a good thing."

HB 2599 was inspired by one of the most chilling revelations regarding the weeks leading up to Brandon Williams' death.

A week before Williams' death, a Pima County sheriff's deputy was looking for Williams' mom, Diane Marsh, because she had been reported missing. The deputy found her in a motel room where she was living.

After the officer noticed that Brandon had heavy bandages on his legs, and Marsh told the deputy that Brandon had fallen into some cactus, the deputy remained suspicious. She noted in her report that she told Marsh that "I had my own concerns both about her safety and the safety of her child and that I would be forwarding this information to Adult Protective Services and Child Protective Services for them to follow up on."

That report wouldn't be forwarded until March 22--one day after Brandon died.

Paton says that if CPS were required to report missing children to the police, "that cop would have known that CPS was looking for Brandon, and he would still be alive today."

Another bill, HB 2594, would require CPS workers to abide by court orders involving custody and visitation by parents or other people.

That's already CPS policy, but it wasn't followed in the Payne case. Instead, when police found Tyler and Ariana with their father, they called CPS, and the workers told them to leave the children with Christopher Payne, even though Hallam had legal custody.

"We wanted to make sure that CPS is following what a judge has ruled on custody," Paton says.

Paton has also been working with prosecutors to craft HB 2455, which would require that CPS investigators work more closely with police and county prosecutors. The bill would also require CPS and county attorneys to file an annual report detailing the number of criminal-conduct allegations that had been jointly investigated by the agencies.

Paton says the bill "goes back to both (the Payne and Williams) cases, where there wasn't a lot of communication between CPS and law enforcement."

The legislation also requires CPS to report to the police when they believe a crime has been committed against a child.

"This isn't a case of a kid being spanked in Wal-Mart," Paton says. "When they suspect a child has been assaulted or raped, then they have to deal with it differently. It's not just CPS that's involved; it's the county attorney."

Lopez says she's hasn't yet reviewed HB 2455 closely, but she's concerned about a provision which would prevent CPS from "providing services to a child or family until a court had OK'ed it."

But Paton says that language has already been changed following negotiations with state officials to address those concerns.

Another of Paton's bills, HB 2159, would make it easier for the press and public to view disciplinary records of state employees. Paton said it was triggered by the media reports of a CPS supervisor dating a man she had once investigated for abusing his children.

The CPS supervisor, Amy Gile, came under scrutiny when another CPS investigator was responding to new abuse complaints about the father of the three children in the home.

"It goes to the heart of separation of the investigator and those being investigated," Paton says. "It made me wonder: What else is going on in government that we don't know about, and what effect does that have on morale in the office?"

HB 2159 says the disciplinary records of state employees are open for inspection, unless otherwise prohibited by law. As insurance against a veto by Napolitano, Paton is also running an identical version of the bill as HCR 2054, which would sidestep the governor entirely and ask voters to approve the law in November.

Paton says the bill puts state employees on the same level as other government employees.

"It didn't make sense to me that county and city employees would be treated differently from state employees," Paton says. "Why should a sheriff's deputy be treated differently from a DPS officer?"

The final bill in the package, HB 2453, opens up court proceedings involving dependent children, permanent guardianship and the termination of parental rights. Individual cases could still be closed when a judge determines that it would be appropriate to protect privacy or avoid physical or mental harm that could be caused by an open hearing.

"It opens it up a little more," Paton says. "It comes from all the complaints I've gotten from parents whose kids have been taken away."

The bill, which expands a pilot project that opened up some court proceedings, is supported by the Children's Action Alliance, says Beth Rosenberg, a lobbyist with the nonprofit group. She says opening up court hearings will demystify the legal process.

"The public needs to understand that CPS oftentimes doesn't just make decisions on their own," Rosenberg says. "There are other people overseeing what they do. Certainly, the courts are critical to that piece of the puzzle."

It's also another example of the transparency that Paton believes will ultimately help CPS.

"The veil of secrecy breeds suspicion about the agency, whether it's deserved or not," Paton says. "People believe that if it's secret, there must be bad things happening. A lot of these CPS staffers are devoting their lives to protecting children, and they're doing a great job. The fact that they're so secretive about how the system works does a disservice to them and the agency.

"It's so we can see how the agency functions," Paton adds. "Is it doing the right thing? Most of the time, it is. But we'll never know that until we open up these records."