Push for oversight of Kansas foster care system plows into partisan minefield

By: - March 23, 2021 3:48 pm

Senate President Ty Masterson, left, and Attorney General Derek Schmidt appear Tuesday before a Senate committee to argue for a new office to investigate and report on problems in the foster care system. (Tim Carpenter/Kansas Reflector)

TOPEKA — Senate President Ty Masterson stated the obvious Tuesday for senators considering legislation to create an Office of the Child Advocate that would investigate and report on problems in the foster care system.

Those problems, Masterson told the Senate Judiciary Committee, exist under every governor regardless of political affiliation. The system needs independent oversight, he said, free from politics.

“We want to remove that to the best of our ability and get down to how do we best become a voice for these children that are in these situations,” Masterson said.

His solution would give the Republican attorney general who is running for governor unprecedented powers to investigate Democratic Gov. Laura Kelly’s handling of the foster care system during an election year. The Department for Children and Families prefers placing the advocate under the governor-controlled Department of Administration.

Longtime proponents of installing an Office of the Child Advocate balked at the terms outlined in Senate Bill 301. Unlike the House plan, which has the governor-appointed child advocate report directly to the Legislature, the Senate plan places the child advocate at the Attorney General’s Office. The attorney general would hire the advocate, excluding candidates who currently or recently worked in the foster care system.

The Senate bill gives the child advocate power to subpoena an individual’s medical and mental health records, and other information that typically would require a court order based on a presentation of evidence. The advocate also could subpoena witnesses and take statements under oath. These powers would exist without due process.

As with the House plan, the advocate would recommend changes in the child welfare system and produce reports for the Legislature.

Attorney General Derek Schmidt says his office provides the necessary separation the child advocate would need from the Department for Children and Families. (Noah Taborda/Kansas Reflector)

Attorney General Derek Schmidt, who plans to run for governor, said the Senate model effectively provides the separate chain of command necessary to ensure the child advocate is independent from DCF.

“If you don’t make it independent, I really think you’re winding up spinning your wheels,” Schmidt said.

Mike Fonkert, campaign director for Kansas Appleseed, said it “pains me to be neutral” on the Senate bill, because the organization has long advocated for a child advocate. The organization last year settled a lawsuit with the state over severe instability in the foster care system.

The number of children in foster care nearly doubled under former Gov. Sam Brownback, escalating problems with missing, abused, trafficked and murdered children. There weren’t enough foster homes, so children were frequently moved and left in office spaces. Those issues persist to varying degrees under the Kelly administration.

It goes without saying, Fonkert said, that the system is in crisis. But the Senate bill, he said, doesn’t provide true independence.

“This is so focused and so controlled by the attorney general that we can’t come and support this legislation in its current form,” Fonkert said. “But you all have such a great opportunity here to make this bill better and really do something that’s going to protect kids in Kansas for the long term.”

Sen. Ethan Corson, a Democrat from Prairie Village, said he worried about the “damaging perception” of placing the child advocate under Schmidt’s control.

“I worry that this person is not going to have credibility,” Corson said. “Whatever they say will be seen in the public and in the media as this is the Republican attorney general who is going after the administration of his political opponent. And likewise, I worry that it will even give the administration the ability to discount what could be very viable findings from that office.”

Masterson, a Republican from Andover, said the child advocate is responsible for being a voice for children, not holding an administration accountable.

“I will concede we’re in a political world,” Masterson said. “And you see this. But the perception becoming reality could only be because you would be building that perception that this person is not independent, or that this person is not qualified, trying to tie it into the political system.”

Sen. Molly Baumgardner, a Republican from Louisburg, dismissed concerns about placing the child advocate under the attorney general because it would be “political suicide” to misuse the power, she said. She pleaded with lawmakers to ignore concerns about “little things” in the Senate bill and consider instead all the problems within the foster care system.

As of Monday, there are 67 missing foster care children, including 34 in the care of Saint Francis Ministries, a contractor that handles about 45% of foster kids in Kansas.

Baumgardner pointed out that a DCF investigation discovered Saint Francis employees had falsified records of child visits, and that whistleblowers had pointed out financial misconduct by the organization’s former management.

Reporting from Kansas Reflector revealed former Saint Francis CEO Robert “Father Bobby” Smith from 2018 to 2020 charged $469,000 to credit cards for expenses that included first-class upgrades on airlines, five-star restaurants and hotels, luxury men’s clothing and Apple iTunes purchases. He invested $11 million in a software company whose product crashed and wiped out the organization’s financial records, knowingly entered into an unsustainable contract with Nebraska, spent hundreds of thousands of dollars on an El Salvador operation to harvest a “miracle” food, and purchased $65,000 worth of Chicago Cubs tickets with plans to scalp them for a profit.

A whistleblower had delivered a report to DCF raising concerns about Smith’s spending in November 2019. The agency launched an investigation in January 2020 but only communicated with Saint Francis leaders who were accused of misconduct. The results of that investigation are still pending.

Kansas Reflector obtained the whistleblower report through an open records request with DCF after Smith and COO Tom Blythe left Saint Francis in November 2020. The departure followed a second whistleblower report from October 2020 that was delivered directly to the Saint Francis board of directors. Kansas Reflector obtained the second report while investigating the nonprofit.

“I am convinced that with regard to the issues facing foster care in the state of Kansas, it doesn’t matter who’s in the second floor, it doesn’t matter who is secretary of DCF, because for the most part, we are using the same contracted agency groups,” Baumgardner said. “For the most part, we have the same group of folks that are cycling kind of throughout that agency. And so it becomes an issue of we need to change the way in which we are doing things. What is the process? What’s the procedure? How can we better serve these families on these children?”

Rachel Marsh, executive director of the Children’s Alliance, said she opposed the Senate bill because of concerns with the unlimited powers it provides the child advocate. The attorney general effectively could pry into the private lives of families associated with the 80,000 reports of child abuse and neglect that are filed in Kansas each year. That includes gaining direct access to therapy records for anybody whose name appears on file in DCF records.

She recommended lawmakers pull back the subpoena powers to align more closely with the process that exists under current child in need of care code.

“Any Office of Child Advocate, to maintain consistency, clarity and predictability, should be included in that free exchange of information rather than have a new access to records standard that hasn’t been vetted, isn’t clear and may infringe civil liberties,” Marsh said.

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Sherman Smith
Sherman Smith

Sherman Smith is the 2021 and 2022 Kansas Press Association’s journalist of the year. He has written award-winning news stories about the instability of the Kansas foster care system, misconduct by government officials, sexual abuse, technology, education, and the Legislature. He previously spent 16 years at the Topeka Capital-Journal. He is a lifelong Kansan.

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