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March 1st, 2012 by Robert Franklin, Esq.
New York’s Office of Children and Family Services has, for five years, denied access to its files in cases of children’s deaths, in apparent violation of state law.  As in many states, New York requires its child welfare agency to disclose to the public matters related to the death of a child who had previously been brought to the agency’s attention.  That law, commonly called “Elisa’s Law” in New York, was passed in 1996, but the OCFS has been trying to avoid its mandate since at least 2007.  Read about it here (New York Times, 2/28/12).

Elisa Izquierdo was six years old when her crack cocaine-addicted mother, Awilda Lopez, smashed her head into a concrete wall and then left her slack-jawed and unconscious for two days while the little girl slowly died.  Lopez pleaded guilty to second-degree murder and was sentenced to serve 15 years to life in prison for the crime.

Some 300 mourners attended Elisa’s funeral and her death spurred legislators to pass a law bearing her name that would require public disclosure of facts in cases in which a child who was known to a child welfare agency to be at risk of harm died due to abuse or neglect.

That it was Elisa whose death so galvanized public opinion, may be because everyone who knew her called her a truly special child.  The word “radiant” was used to describe Elisa’s special brand of charm and sparkle.

Elisa lived the first five years of her life with her father, Gustavo Izquierdo, and plainly thrived under his care.  But he died of cancer on May 26, 1994, before he could carry out his plan to send Elisa back to his native Cuba to keep her from her mother whom he knew to be a danger to the child.  That led to Elisa’s being placed in Lopez’s “care.”  Less than two years later, she was dead, brutally and heartlessly murdered.

But Gustavo Izquierdo wasn’t the only one who was concerned about Elisa’s treatment by Lopez.  Indeed, the New York City child welfare agency had received seven reports of abuse by Lopez in the short time she had custody of the little girl.  But those reports failed to spur the agency to action to protect Elisa from harm.  In short, confronted with seven separate reports of abuse of a child by a crack-addicted mother, the agency did nothing.  It has one job to do – protect children from harm – and it failed to do it.  Because it failed, a “radiant” little girl was murdered.

In what now seems a harbinger of things to come, one brave caseworker spoke out about the agency’s failures in Elisa’s case.  Rosalie Harman spoke to ABC News about the case and the agency suspended her because she did.  The Administration for Children’s Services suspended Harman for speaking to the media in violation of its policy against same.  Harman went to federal court and had her suspension and the agency’s policy overturned as the unconstitutional infringement on free speech they so plainly were.

Fast forward to 2007 when the state Office of Children and Family Services tried to get the legislature to change the law to allow it to limit the public disclosure portion of Elisa’s Law.  That effort and all subsequent efforts by the agency have been refused by the state’s lawmaking body.

Undeterred by the plain meaning of Elisa’s Law and the many subsequent refusals to change it, the OCFS simply issued its own rule exempting it from its provisions.

But for the last five years, the state’s Office of Children and Family Services has been working quietly and persistently to limit access to those case reports, which in most instances are the only record of the circumstances leading up to the deaths.

In 2007, the office tried to have the law changed. When that failed, it made its own rule. According to a policy enacted by the office in September 2008, it will not release the fatality reports mandated by Elisa’s Law if there are siblings or other children in the home and officials decide that revealing the family’s abuse and investigative history is not in their “best interests.”

“This is like back to the future,” said Jeffrey Binder, who was press secretary for former State Senator Roy M. Goodman, Republican of Manhattan, when he sponsored Elisa’s Law. “We were trying very hard to remove the veil of secrecy.”

That’s a use of the “best interests of the child” concept I haven’t seen before.  Exactly how is it in a child’s interest to keep secret the bungled workings of an agency that allowed a child to be killed when it knew beforehand he/she was at risk of harm?

“Our primary focus is protecting the interests of surviving siblings and family members,” said Gladys Carrión, the commissioner of the Office of Children and Family Services.

Ms. Carrión said she could not provide an example of a child’s being harmed as a result of the release of a fatality report, but she said: “It is not far-fetched that releasing the information of a particular child would have an adverse impact on surviving siblings.”

Keep in mind that Elisa’s Law was passed in 1996 and has been in effect since then.  The agency adopted its rule preventing disclosure in 2008.  That means they’ve disclosed the required information in every case between 1996 and 2008, unless they simply refused to comply with the law during that time.  And in all that time Carrión can cite not a single instance of harm that has come to a child from compliance with the disclosure law.

But still, the agency refuses to comply with the law.  And it turns out that’s no trivial matter.

The state issues about 250 fatality reports each year. And in 2010, for example, two-thirds of the reports issued in New York City involved homes with multiple children, meaning that under its new policy, officials could withhold information about their deaths.

Who does the OCFS think it’s kidding?  Its rule doesn’t protect children; it protects the agency.  Specifically, it protects the agency from public knowledge of its own incompetence.  When OFCS errs, children are often injured and some of them die.  Understandably, knowledge of that on the part of the press, the public and elected officials could spur calls for change.  People might get fired, the agency might get sued and senior bureaucrats there aren’t about to let that happen, even if it means violating state law to prevent it.

Similar things are going on in California, where Los Angeles County child welfare agency has refused to turn over records of child deaths to the state’s auditor, again, in plain violation of state law.  And in Arizona, the press has long complained about the child welfare agency’s refusal to provide information on child deaths that’s required by statute to be made public.

As with every other govermental agency, the performance of child welfare agencies can’t be improved if we don’t know what they do.  The “best interests of children” is once again trotted out as a magic incantation that supposedly trumps all other public interests.  It won’t work.  The people of New York have the right to know what the agency is doing and what it’s failing to do.  After all, it’s precisely those failures and that lack of public knowledge that cost Elisa Izquierdo her life.

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