Conroe, October 5 – A crisis has besmirched the $989,240 per year vendor, Advocates for Families in Crisis (AFC), a nonprofit organization that has a lucrative County government contract to provide “Managed Assigned Counsel” (MAC) services in Child Protective Services (“CPS”) parental termination cases. What’s particularly sad about the problems is that it seems that all of the people involved in the problems are decent people who have made some unfortunate mistakes. As usual, it’s the taxpayers who seem to bear the brunt of the results of the problems.
Background to the crisis
CPS parental termination cases are particularly sensitive. By their very nature, these cases fall under secrecy under the provisions of the Texas Family Code which requires the sealing of all of the proceedings to protect the children involved and their loved ones. Court records are sealed. Legal proceedings progress behind closed and locked doors. The courts take the secrecy quite seriously and enforce those rules vigorously inside the Montgomery County Courthouse.
In those cases, where the County Attorney’s Office files a parental termination as a result of behavior that might endanger a child, essentially everyone involved in those matters agreed in confidential interviews with The Golden Hammer, Montgomery County’s leading daily newspaper, that the true goal is “family reunification” rather than actual termination of the parent-child relationship. After the County Attorney has filed those cases, approximately three hundred (300) currently pending, on behalf of the State of Texas, the attorneys and court system seek outpatient or inpatient drug programs for the parents, alcohol treatment programs, counseling, and other methods of rehabilitating the family relationships. “Ideally, even after the County files a termination, the hope is that we’ll get the children back with the parents eventually,” County Attorney J.D. Lambright told the Commissioners Court during a presentation in 2015.
As soon as the County files the case, the court must, by statute, appoint an attorney ad litem to represent the child and a guardian ad litem to look out for the interests of the child. CASA, another nonprofit organization, provides the pool of individuals who serve as the guardians ad litem for the children. But AFC has the contract with Montgomery County to provide the attorneys ad litem for the children and for any parents who are indigent and unable to afford counsel for themselves.
There is a CPS court in the James Keeshan County Building on the Second Floor. Retired County Court at Law Judge Jerry Winfree hears non-jury matters in CPS cases, while the original courts where those cases are actually filed must hear jury trials. For example, a CPS parental termination jury trial is set to begin in District Judge Tracy Gilbert’s 418th District Court on Monday, October 9, 2017.
The trouble begins with the taxpayers taking it on the chin (as always)
Prior to AFC’s contract in 2013, Montgomery County judges appointed attorneys to act as the attorneys ad litem for the children and the attorneys for indigent parents on a “wheel system,” a giant list of attorneys whom the Board of Judges have approved as qualified to receive such appointments and then who receive their fees at the end of each case after the judge has reviewed and approved them. In one sense those fees might be somewhat haphazard, because the judges did not have specific budgetary constraints for their approval of the attorney fees. History has revealed, however, that the judges were actually quite conservative in Montgomery County with their approval of such fees.
Some attorneys, judges, and County employees argued that putting the County under a fixed contract for all of the MAC services would actually save Montgomery County money by limiting the annual costs to a fixed contract price each year.
Goodness were those prognosticators of savings completely off base!
In 2013, when the County began its contractual relationship with AFC, the amount the County spent on MAC services almost doubled from $447,000 in Fiscal Year 2012 to $883,250 per year in Fiscal Year 2013. The sad reality is that the Montgomery County Commissioners Court, particularly under the leadership of County Judge Craig Doyal and Precinct 1 County Commissioner Mike Meador, its two most senior members, simply has no ability whatsoever to utter the word “no” to spending proposals.
The County’s spending on MAC services for CPS cases has grown substantially in seven years and more than doubled in that time.
FY County spending on MAC attorney services
During the budget workshop before Fiscal Year 2017, AFC asked for a budget increase, which the Commissioners Court, of course, granted.
Who actually receives that money?
AFC’s most recent public tax return is from calendar year 2015. AFC’s top officers and directors, all of whom are practicing attorneys in the AFC program, Stephanie Hall, Elizabeth Payte, and Leeann Hill, each received more than $104,000 in compensation. It’s important to note that working for AFC is not the full-time job of any of those individuals, as they all maintain private law practices as well.
Leanne Hill, who has served on the Board of AFC since its inception, spoke with this newspaper this evening and challenges the 2011 and 2012 numbers above, because she believes that those numbers do not include funds paid to attorneys in CPS cases out of different budget accounts. Hill believes the actual number for 2011 was in the range of $700,000 to $800,000. Hill further believes those numbers are artificially low because they don’t include indirect costs the County expended to run the program. The problem, however, is that the County has continued to expend those “indirect costs.”
The crisis compounds: John Lockwood’s major conflict of interest
Within the County Attorney’s Office, there are two attorneys in the CPS Division who handle all of the 300 or so cases on behalf of the State of Texas. They also employ one legal assistant and one paralegal who works for both attorneys. The two attorneys divide the cases but often consult with each other as attorneys might in private practice.
Until August 28, 2017, John Lockwood, a fourteenth year licensed attorney, was one of the two CPS attorneys working for County Attorney Lambright. On August 14, 2017, however, Lockwood gave two-week’s notice that he was quitting his job. Lockwood did not reveal his future employment plans but the employees in the County Attorney’s Office felt that Lockwood left the Office where he’d worked for six-and-a-half years on fairly good terms. Lockwood was directly responsible for between 150 to 200 of the CPS cases.
To the shock of Lambright, who declined to provide an interview for this story, and other officials in the County Attorney’s Office, Lockwood appeared in the CPS Court on October 2 around 9 a.m. and introduced himself as the new Program Director of AFC! Under the contract between Montgomery County and AFC, a copy of which The Golden Hammer obtained by Open Records Act request, and under the County’s Request for Proposal which the County and AFC incorporated into the current contract, dated February 13, 2016, the Program Director oversees and manages all of the attorneys who serve under the MAC program and appoints each attorney for each case as well. AFC’s organizational chart submitted to the County’s Purchasing Department in 2016 shows the importance of the Program Director position:
Chapter 107 of the Texas Family Code requires that a program director of an MAC program be a licensed attorney.
As a result of Lockwood’s surprise appearance on the other side of County Attorney’s Office cases for which he had previously served as the attorney in charge, the Montgomery County Attorney’s Office has officially begun to file motions to disqualify AFC and its appointed attorneys as counsel. So far, since Monday, the County Attorney’s Office has filed a half dozen motions to disqualify. Three confidential sources inside the County Attorney’s Office have confirmed that the Office is preparing several dozen other motions to disqualify the AFC attorneys.
Why would AFC’s attorneys, who now work under the management and oversight of Lockwood, all face possible disqualification?
Both under the County-AFC contract and under the ethics rules governing attorney conduct in Texas, happily known as the Texas Disciplinary Rules of Professional Conduct (the “DRs”), an attorney may not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultatation, pursuant to Rule 1.10 of the DRs.
Neither Lockwood nor AFC consulted with the County Attorney’s Office to obtain consent to act as the managing attorney for cases directly in opposition to CPS files where Lockwood had served as the attorney of record for the State of Texas (CPS) until August 28.
There are methods of “screening” or “erecting a Chinese Wall” in such circumstances, but not if the former government attorney has already been involved somehow in the legal matter in any manner against the government agency. Amazingly, Lockwood appeared in the CPS court to introduce himself to Judge Winfree and the County Attorney’s Office staff as the Program Director who oversees all of the AFC files in positions substantially against the position of the public office. By bringing Lockwood into AFC, AFC has “infected” all of the AFC attorneys with the potential that they’ll use confidential information Lockwood garnered when he served as the Assistant County Attorney in those cases on the prosecution side.
AFC would seem to be in clear breach of its contract with Montgomery County by the violations of DR 1.10 as well as the conflict of interest rules and rules regarding the use of confidential information, contained in DRs 1.05 to 1.09.
Lockwood was very cordial during his brief interview with The Golden Hammer, as one might expect of an attorney who has worked for child welfare during most of his legal career. Lockwood responded to this newspaper’s question, “At this point given the litigation and the pending motions, I’m going to withhold any comment.”
Another problem for AFC
Obviously, AFC’s Program Director Lockwood must appoint attorneys ad litem to represent children in cases where their parents have engaged in severe alcohol or drug abuse among other horrible circumstances. Two staff members of the Commissioners Court, who have requested anonymity, and one assistant county attorney who has also requested anonymity have confirmed that at least two different AFC attorneys have had drug and alcohol abuse problems resulting in criminal convictions themselves.
Now let’s be fair. Just because someone has had a problem in their past doesn’t mean they have a problem now. Unfortunately, that’s precisely the type of sensitive issue which a careful Program Director must resolve on a case-by-case basis.
Problems on the horizon
There was a proposed agenda item to discuss and possibly terminate the AFC contract on the draft Commissioners Court Agenda for the September 26, 2017, meeting. The agenda item mysteriously disappeared prior to the posting of the agenda on September 22, 2017.
Three County officials, including one inside the County Judge’s Office, have confirmed that the Purchasing Department has requested an agenda item to review and discuss the AFC contract. AFC Program Director Lockwood told The Golden Hammer that he was not aware of the possibility that AFC’s contract would be up for discussion at either of the two Commissioners Court meetings.
AFC’s contract has a 60-day termination notice. The contract also contains a provision which provides: “AFC shall perform its services and shall exercise all discretionary powers in a manner consistent with applicable standards of professional conduct and ethics.” AFC probably should address the Lockwood disqualification issue rather quickly.
AFC also has a free use agreement for an office inside the James Keeshan County Building, which use agreement requires 30-days’ notice prior to termination.
AFC’s 2-year contract will expire on February 13, 2018, by its terms.