Not Suitable for Children: Can Arizona's Broken Child Welfare System Ever Be Fixed?

Not Suitable for Children: Can Arizona's Broken Child Welfare System Ever Be Fixed?
Andrew J. Nilsen

Two-year-old Cloud Gerhart weighed just 17 pounds when the Department of Child Safety finally removed him from his home in September 2014. The first call to authorities had come before he was even born, after Cloud's mother, Megan, tested positive for marijuana during two prenatal appointments.

Between the time of his birth and the day DCS took him away, the state's child abuse hotline received six more calls expressing concern that Cloud was skinny and hungry, that Megan drank and smoked a lot, and that their trailer in Sierra Vista was dirty and full of trash. Documents show that caseworkers visited the Gerhart residence and discussed parenting classes with Megan more than once, but no one thought the situation ever warranted removing the baby.

Almost eight months after the last caseworker visit, the Cochise County Sheriff's Office called DCS to complain about Megan and Cloud. An officer had responded to the Gerhart residence for an unrelated trespassing incident and put a note in the police report saying he had concerns about the child's health. The cop's supervisor called the child welfare agency.

DCS flagged the case as a top priority and dispatched a field investigator who, upon seeing Cloud, removed him and took him to a hospital. He was released to a family member a few weeks later, and Megan and her boyfriend were charged with child abuse.

Though it's unacceptable that Cloud had languished in Arizona's "broken" child welfare system, it's almost unfathomable that he continued to do so for seven months after what arguably was the most drastic overhaul of the system ever attempted in this state.

In January 2014, then-Governor Jan Brewer dissolved Child Protective Services, Arizona's long-maligned child welfare agency. She replaced it with the new cabinet-level Department of Child Safety, to which she named Charles Flanagan director. Flanagan, then head of the Arizona Department of Juvenile Corrections, previously had headed Brewer's task force on child welfare reform.

In a short period of time the Flanagan administration was reporting some measurable success.

Then came Cloud Gerhart.

In November 2014, Greg McKay, head of the Office of Child Welfare Investigations—the law enforcement arm of the new DCS— heard about Cloud's case and saw it as proof that what Flanagan was doing wasn't working. In early January, he brought it to the attention of Governor Doug Ducey, and on February 10, Flanagan was fired and replaced by McKay.

It's not unusual for a new governor to change state agency leaders, but Flanagan was still so new and showing progress (he'd made significant changes to the child abuse hotline, for instance, so that 87 percent of calls were answered in 60 seconds or less, and the number of abandoned calls dropped to 4.1 percent from 32 percent), and knee-jerk reactions every time a problem arises or a child dies are part of why the system remains a mess.

There's very little data available, so it's hard to know what McKay's impact has been so far. What is known, however, is that two kids have died on his watch in the past month. In Surprise, 3-year-old Alexandra Tercerro was pronounced dead on May 23 after being taken to a hospital covered in bruises and weighing only 15 pounds. And in Mesa, 21-month-old Joylynne Giebel died on June 5 at the hands of her stepfather, six months after DCS had been alerted about a potentially abusive situation.

Cloud Gerhart weighted 17 pounds when DCS removed him from his home in September 2014.
Cloud Gerhart weighted 17 pounds when DCS removed him from his home in September 2014.
Arizona Department of Child Safety

For decades, politicians, bureaucrats, academics, and the media have labeled Arizona's child welfare system as broken, and according to the most recent DCS data, one out of every 100 kids is in out-of-home care. In a 2014 state-by-state comparison, the Annie E. Casey Foundation, a private charity devoted to helping disadvantaged kids, ranked Arizona's system 46th in the nation.

Few frontline employees last beyond three years, and there are never enough caseworkers to meet demand. There's a lack of funding for preventative and poverty-assistance programs, and because of a perpetual shortage of foster homes, kids frequently end up sleeping in DCS offices for a night or two before being placed with families — in April, 287 children spent at least one night in DCS offices across the state.

On top of that, 14 percent of kids in foster care live in group homes or shelters, which is more than ever before. DCS is embroiled in a federal class-action lawsuit filed earlier this year by a coalition led by the Arizona Center for Law in the Public Interest against DCS and Department of Health Services for maintaining a "dangerous, severely deficient foster care system."

Getting rid of CPS was supposed to solve Arizona's child welfare problems once and for all. And by many accounts, Flanagan was doing a good job: His team dealt with thousands of uninvestigated cases, fixed the child abuse hotline, increased staffing, and began the process of replacing an outdated computer system. Flanagan reportedly was well liked and respected among employees. Former and current staff members tell New Times that Flanagan was open to new ideas, and that they felt optimistic and supported for the first time in years.

State Representative Debbie McCune Davis, a Democrat who sits on the legislative Child Safety Oversight Committee and has been involved with child welfare politics for years, believes Flanagan was a DCS leader with "a long-range view" of problems and solutions.

"He worked with kids in juvenile corrections, so he saw the impact of us failing kids in child welfare," she says. "I had the sense he was making progress."

Then Cloud Gerhart ended up in the hospital and McKay was appointed director. Rumor has it that McKay got the position because Maricopa County Attorney Bill Montgomery didn't like Flanagan or his vision for DCS and pulled strings to get Flanagan out. Both Montgomery and McKay deny it, and Ducey's people won't say exactly why Flanagan was fired, only that DCS needed a new direction and renewed focus on child safety.

McKay took over amid promises to solve his predecessor's problems, but his critics say he has done the opposite. In the past four months, McCune Davis' office, she says, has been getting "all sorts of phone calls from all sorts of people who have been pushed out of the agency or have left voluntarily and just can't believe what's going on. We hear a lot about people leaving the agency out of frustration, about firings or other changes at the top." She says employees are "afraid to make decisions based on professional judgment" because they're "scared of becoming scapegoats."

New Times has spoken with many current and former DSC employees who describe McKay as retaliatory and vindictive. They talk about how he got rid of the internal investigations department that previously had investigated him, and they say DCS has become a place where people are regularly fired for unexplained reasons and where those remaining tiptoe around, waiting and wondering when they'll be let go.

DCS spokesman Doug Nick says the department doesn't have statistics on the number of employees who were fired or who resigned in the past four months, but it becomes apparent just how much has changed when you compare agency organizational charts from early February and the first week of June. It's not just the few people in the top tier of leadership who have been replaced. People have quit at all administrative and operation levels, say employees and child welfare experts.

"When they [fired] two of our program managers, Gene Burns and Nanette Gerber, that was the straw that broke the camel's back for me. The two of them knew everything about the agency," says Jane, who worked at DCS for 11 years before quitting in early June. ("Jane" asked that New Times not use her real name because she works in a related field and fears retribution.)

Burns and Gerber, who oversaw case-management supervisors in the Southwest and Central regions, respectively, had both worked at DCS for decades and were fired without explanation in early March.

"Nanette was highly regarded by ASU, by all the providers. She has a master's degree in social work and was all about reunification," Jane says. "Nanette is a wonderful lady. I mean, come on, you're getting rid of Nanette? That was the one that got to me."

DCS doesn't comment on personnel matters, but McKay tells New Times that "it turns out that just because somebody has worked in a capacity for a very, very long period of time, doesn't exactly give them the right to continue to work in that capacity indefinitely."

To Jane, it's not just that specific employees she liked got fired, it's that DCS lost these employees' institutional knowledge.

"This is the most political thing I've ever seen in my life. There is no rhyme or reason to anything," she says, adding that when employees, especially those who have been with the department for years, are either fired or so fed up with the agency that they quit, it "affects kids in a lot of ways." Caseworker relationships are a source of "stability for kids, and when that is gone, it's just another thing leaving their life."

DCS is "losing a lot of great, dedicated people who were invested in the kids, who knew the system," she says. "And it is a damn shame."

To be fair, McKay's personnel file from his 20 years at the Phoenix Police Department is spotless, and he has made important improvements at DCS. He created a commission of foster parents to advise him on ways to attract and retain foster families. And soon, when children are dropped off at foster homes, families will be given "placement packets" with information about the children's past experiences, medical history, and services they are entitled to receive. Also under McKay's leadership, DCS helped open a new emergency placement center in Phoenix so that children no longer would have to sleep in a DCS office while staff members find foster care placements.

(However, a recent Facebook post on the Arizona Adoptive & Foster Moms page suggests that the emergency placement center is wildly understaffed, and on days when no volunteers show up, one employee can be left watching over more than a dozen kids under age 5. When asked about this, DCS spokesman Doug Nick tells New Times in an e-mail, "If, for some reason, volunteers do not show up, we have sufficient staff to ensure the safety of that facility.")

When it comes to child safety, experts agree that outcomes are the most important thing. Since it probably was too soon to assess Flanagan after eight months (let alone McKay after four), in order to understand how recent leadership changes have affected the agency, New Times spoke with current and former DCS employees, public officials, advocates, and other community partners in the field of child welfare. New Times also reviewed hundreds of pages of public records, redacted e-mails, and various government reports, and consulted with experts across the country about best practices in child welfare.

There's no such thing as a perfect DCS director. No one can prevent every child fatality or instance of abuse. What's clear is that Flanagan and McKay have very different personalities, backgrounds, and ideas about how to fix Arizona's child welfare system. What's less clear is what Flanagan could have accomplished with more time and what McKay's impact will be in the long run.

No one — not even Greg McKay's staunchest critics — doubts his passion for child welfare. What they're skeptical of, though, is Governor Ducey's motivation for putting him in power and whether he has the skills and personality to make DCS succeed.

While the backlog of cases is at an all-time high and sweeping changes are being made to DCS, McKay seems poised to become either the best or the worst thing that's ever happened to Arizona's child welfare system.

Greg McKay
Greg McKay
Arizona Department of Child Safety

Humans have grappled with child welfare issues for as long as anyone can remember. At times, kids were considered property and at other times, they were thought to have rights. The ancient Egyptians believed that those who hurt or exploited children would be judged harshly after death, and the Babylonians spelled out rules in the Code of Hammurabi for how children should be treated. But who can forget how close Abraham came to killing his son Isaac because God told him to?

The history of child welfare practices in America also is complicated and messy. It dates at least as far back as the mid-17th-century practice of removing children from parents thought to be doing a poor job raising them. During the next 200 years, adults continued to intervene when children were noticeably abused, although there were no formal processes and interventions occurred only sporadically.

Things changed in 1875 when child-focused nongovernmental groups popped up around the country. They dominated child welfare until the federal government stepped in and created the U.S. Children's Bureau in 1912.

Over time, trends and developments in the practice of psychology influenced how child welfare agencies operate — experts talk, for example, about how society goes back and forth on whether it's more important to keep families together or remove children from potentially harmful situations. It's an inherent debate in child welfare, one to which Arizona is no stranger — particularly in times of crisis.

In July 2001, 5-year-old Aleicia Putrow was beaten, sexually assaulted, and drowned in a bathtub by her mother's boyfriend. Two months later, toddler Liana Sandoval was beaten to death, strapped to an 18-pound block of concrete, and dumped in a canal. And in November of that year, 10-day-old Anndreah Robertson died because "her insides were rotted by the smoke from Mommy's and Grandma's crack cocaine," the Arizona Republic reported.

In response, former Maricopa County Attorney Richard Romley commissioned a research group in early 2002 to study how CPS and law enforcement worked together to protect children from criminal abuse and neglect. The final report, issued in March 2003, was called "In Harm's Way." It was a landmark document, describing the tension between CPS' dual goals of protecting children and preserving or reunifying families, and it stated that many experts believed Arizona needed to put more emphasis on the former.

Like Bill Montgomery, Romley had always believed law enforcement needed to play a bigger role in CPS. He used the findings of the report to support his view and advocated for removing more affected children from their homes.

But by far, the biggest spike in the number of kids in foster care occurred in 2009. Following the 2008 economic crash, families in Arizona were hit with a double blow: rising unemployment rates and slashed social services. The number of children in foster care increased 47.3 percent from March 2010 to September 2013, rising to 15,037 from 10,207. The most recent data, which is from February of this year, puts the number of kids in state care at 17,438.

Kris Jacober, executive director of the Arizona Friends of Foster Children Foundation, a nonprofit that provides support and services to foster families, sees a clear cause-and-effect relationship between the 2009 budget cuts and the sudden increase in kids in foster care.

"Those cuts took away Family Builders [a collection of social services and financial assistance programs established in 1998] and they took away caseworkers," Jacober says. "They took a lot of support out of the system for foster families and for DCS workers.

"I don't understand why everyone is surprised that six years later our system is such a mess," she adds.

Another major change in Arizona's child welfare system came after a string of high-profile child fatalities in 2011. Bill Montgomery, elected to the Maricopa County Attorney's Office a few months earlier, tells New Times he "got fed up and starting calling attention to the failures of CPS to safeguard children." He was quoted at the time saying that CPS caseworkers "don't remove children that they should, and those children wind up dead."

As a response, Governor Brewer established the Child Safety Task Force in October 2011 and asked Montgomery to chair it. The group recommended, among other things, that Arizona create the Office of Child Welfare Investigations to handle situations involving criminal conduct.

Greg McKay, a Phoenix police detective known for investigating child abuse, was selected to head the new department, and it was in this capacity that he uncovered the "NI" (not investigated) scandal. On November 12, 2013, McKay sent Governor Brewer a memo describing "the dangerous and unlawful practice" that had caused more than 6,595 reports of child abuse between 2009 and 2013 to be closed without investigation. He wrote that he had "identified many reports of an extreme nature closed as NI," including cases that had prior abuse reports.

There had been talk for years about taking CPS out of the Department of Economic Security and making it a stand-alone cabinet-level agency, and Brewer took that drastic step after finding out about the uninvestigated cases. She put Charles Flanagan in charge, and he immediately put in place a triage system to investigate them all.

As DCS tackled the "not investigated" cases, a backlog of "inactive" cases grew to include more than 13,000. Cloud Gerhart's was one of them.

The agency uses a computer system that automatically flags an open case as inactive if no one enters a case note or other data in 60 days. Unlike the "not investigated" cases, which were never made into reports or investigated, inactive cases occur at all stages in the DCS system and do not necessarily mean a child is in danger. Much of the backlog consists of cases requiring final documents be filled out or approved by a supervisor.

Because already over-burdened employees were dealing with uninvestigated cases on top of their normal workload, paperwork took a back seat to fieldwork and the number of inactive cases grew.

On June 30, 2014, less than a month after the Legislature formally created DCS, Chad Campbell, deputy director of operations, sent an e-mail to all of DCS about the triage process the agency soon would implement to get through the backlog. He wrote that the administration was open to suggestions or ideas about the process.

Records show that Campbell sent five e-mails to the DCS staff between June 30 and September 5, 2014, with updates on the backlog process. But then on November 5, McKay sent Flanagan, Campbell, and bureau chief of field investigations Rob Bell an e-mail stating it was the first he had heard of the process and that he was concerned about its "quality/value."

Attached to the e-mail were details and disturbing photographs of an emaciated toddler, Cloud Gerhart, which he used to illustrate his point about the flawed backlog process.

The last time any caseworker had visited Cloud or entered a case note in his file was in early January 2014, and his case became part of the inactive backlog 60 days later. However, documents show that on March 13, another report was called into the child safety hotline because Cloud "looked like skin and bones." The caller also stated that Megan Gerhart would not feed Cloud for three days at a time because he would not say the word "eat."

A caseworker should have gone to the house to investigate, but no one did. Then on August 28, 2014, the March phone call was not discussed when the case came up for review in the backlog process. So based entirely on the January information that said Cloud was skinny but not malnourished, a DCS employee reviewing the case determined it required no immediate response.

Three days later, the Cochise County Sheriff's Office called DCS about Cloud.

No one will deny that DCS messed up on this case, but the Flanagan team didn't think it meant that the entire triage process was flawed. McKay felt that for every backlogged case, DCS should "put eyes on the kid," and he used Cloud's case to support his position.

Records show an e-mail conversation between McKay and Bell on November 5 and 6 about the process, culminating in an incendiary message from McKay: "This plan is dangerous and unsafe . . . I cannot support these kinds of paper-review, boilerplate circumventing's [sic] of our mandate to protect kids."

Bell forwarded the note to Flanagan, who chastised McKay for his "unfounded, inflammatory and inaccurate statements," and told him that if he had concerns, he should be professional and document them in a memo.

A week later, McKay sent Flanagan an eight-page document of grievances, and on January 6, one day after Doug Ducey was sworn in, McKay presented the governor with the binder of evidence that claimed to show why the backlog process was harmful to kids — he included 127 pages of case-specific information, a move that was questionably legal because of privacy laws.

The following day, Flanagan was called into Ducey's office and met with a staff member who slid McKay's binder across the table and said Flanagan had until the next morning to provide a response. He submitted a binder of his own that included all of the above-mentioned e-mails, as well as a detailed description of the review process for inactive cases.

Records show that during the following week, Flanagan and Montgomery had an e-mail conversation about the inactive process. As Flanagan attempted to clarify the triage method, he repeatedly asked Montgomery to meet with him, but the request was never acknowledged in Montgomery's responses.

On February 10, Flanagan was fired. An hour later, Ducey announced McKay was the new DCS director.

On May 23, DCS received a call stating that a 3-year-old girl from Surprise named Alexandra Tercerro was dead, her 15-pound body covered in bruises and lacerations. The department's first involvement with family occurred in May 2011, days after Alexandra was born, because both she and her mother tested positive for amphetamines.

The department immediately removed Alexandra and an older sibling, but they were returned in April 2012 after their parents, Rosemary Velazco and Carlos Tercerro Cruz, successfully completed substance abuse treatment and parenting classes. The case was closed in July 2012. Less than three years later, Alexandra was dead.

On June 5, DCS received a call saying 21-month-old Joylynne Giebel had been found dead in her home in Mesa. According to DCS documents, she had significant injuries, including bruising to the left side of her head, several small bruises and scrapes to her face and body, internal trauma to her abdomen, and three broken ribs. The treating physician declared that the injuries appear to be caused by abuse.

Joylynne died six months after DCS received its fifth call alleging her stepfather, Andrew Isaacs, physically abused and neglected her. The report also alleged that Isaacs used and sold drugs in the home and gave Percocet to Joylynne to "tranquilize" her. In December, a caseworker went to the house and found no one at home, so she left a note asking a parent to contact DCS.

No one from the department followed up, and Joylynne's case became part of the growing inactive backlog shortly after McKay took over.

Ultimately, regardless of how many kids DCS saves and finds permanent homes for, the agency's director ends up in the spotlight every time a child with past DCS involvement dies. This was true for Charles Flanagan and all those who came before him, and it's proving to be true for Greg McKay.

McKay openly says DCS failed these two little girls and has promised to investigate both situations thoroughly, but he still insists children in Arizona are better off now than they were in February. It's impossible to say whether Flanagan's backlog triage process would have saved Joylynne if he had remained director.

Doug Ducey and Bill Montgomery also say they believe things are improving. Montgomery tells New Times that under Flanagan, DCS struggled with "professional investigations and getting things done with a first-person interaction," strong suits for McKay, under whom, he says, the agency is doing better.

Charles Flanagan, like many others New Times spoke with, disagrees. "The outcomes that are being produced by the current administration are far worse than what we were producing, and it's not good for child welfare in Arizona," he says, declining to comment further. Flanagan, who now works for Rio Salado College, says he pays close attention to what happens at DCS.

Both McKay and Flanagan promised positive outcomes and both have said it would take time. "I know [patience] is a dirty word because people are sick and tired of hearing about the same old problems, giving more money, more grace to this place, and hearing the same problems," McKay says. "[But] I can't produce outcomes in [four months] that are sustainable and mean something real."

During the most recent legislative Child Safety Oversight Committee meeting on May 28, five days after Alexandra Tercerro died, Greg McKay stood at a podium wearing a sharp suit and gave a presentation about his first 100 days as director to the group tasked with monitoring DCS' progress.

"There's a lot of rebuilding needed. And we've done that," he said. "And I'm proud of what we've done, I'm proud of this team for doing it."

McKay talked about making changes to remove redundancies in the agency, like getting rid of the Office of Special Investigations, the internal DCS department responsible for looking into employee misconduct and wrongdoing, because he felt its mission was unnecessary and could be handled by other departments.

McKay's critics say he got rid of the unit because it previously had investigated him and the entire criminal conduct investigations department he oversaw. According to McKay, they were investigated only for small infractions, like using profanity in the workplace. New Times' request for documents regarding the investigation has gone unanswered for more than three months.

McKay also acknowledged to the committee that the backlog of inactive cases had increased since February. He went on to describe a triage process that sounded a lot like the one Flanagan put in place — the one he claimed was illegal and harmful to children. He mentioned he was looking into using outside providers to help with the burden, something Flanagan had been negotiating for months prior to his dismissal.

"I'm hearing that every quarter, people are quitting in droves," said State Senator Nancy Barto, a committee member. "I'm wondering how many quit in the last month, and how many of those were senior level staff?"

McKay said he didn't have those statistics on hand.

"I don't think I've seen the morale any lower than it is today," committee member Bill Owsley said, looking directly at McKay. Owsley, who litigates dependency cases, told McKay that from what he's seen and heard, DCS employees have no sense of where the agency is headed or why leadership is making particular decisions.

State Representative Debbie McCune Davis, who sat next to Owsley at the committee meeting, made it clear she was disappointed in McKay's lack of data. "I'm struggling, because a year ago we created a new agency and we are measuring progress from that date, not from 100 days ago." For decades, the people of Arizona have been hearing a lot about supposed reforms to child welfare, but all of the data that exists or that was "released at the meeting was based on Flanagan's time," she tells New Times.

"We don't know what has changed under Director McKay," she adds, "but simply making the transition from Flanagan to McKay did nothing to fix [DCS'] problems."

Editor's note: This story has been updated since its original publication.

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