After a 6-year-old boy came to school with yet another black eye he said was inflicted at home, Connecticut's ombudsman for children gave the state's child welfare agency an ultimatum: File for custody of this child by 2 p.m. or we'll do it for you.

When Rhode Island's child welfare agency refused to take on the state's powerful Catholic Church, despite multiple reports that children were being sexually molested in a church-run facility, that state's child advocate went to court. And shut the facility down.

ON THE WEB
Child advocacy What other states are doing: Washington: www.governor.wa.gov/ofco/ofcohome.htm Connecticut: www.oca.state.ct.us/ Rhode Island: www.child-advocate.state.ri.us/

In both states, and in a growing number of others, the independent child advocate office was doing what it was designed to do: acting as a thorn in the side of a child welfare system that too often fails children.

Now following publicity that more than 800 children have died in Georgia since 1993 after becoming known to state child protective services, Gov. Roy Barnes has thrown his weight behind legislation that would create a similar watchdog here.

But critics have called Barnes' proposal a "vanilla bill" that lacks muscle. Rather than acting as a thorn in the side, they say, his child advocate would be more like a feather to the nose.

"This is a toothless tiger," says Don Keenan, an Atlanta attorney who is suing the state over 5-year-old Terrell Peterson's abuse death. "They're not serious about making fundamental change. This is just puffery and window dressing."

At issue is how broad the powers and duties of Georgia's child advocate --- or ombudsman --- should be.

STATE OMBUDSMEN FOR CHILD PROTECTION

Nineteen states as well as New York City and Cook County, Ill., have ombudsman's offices whose primary function is to monitor state child welfare agencies; about half operate outside and independent of those agencies. Staffing ranges from one employee in New Mexico and Wyoming to 175 in Cook County. A look at the 21 offices: State Staff Independent? Arizona 1.5 Y California 1   Colorado 2   Connecticut 5 Y Delaware 3   Florida 3 Y Illinois 25 Y Illinois (Cook County) 175 Y Kentucky 14*   Massachusetts 4   Michigan 15 Y New Mexico 1   New York City 4 Y Oregon     Rhode Island 6 Y South Carolina 17 Y Tennessee 4 Y Texas 2 Y Utah 7   Washington 7 Y Wyoming 6   * Staff of 14 also handles other inquiries about human services. --- Compiled by Alice Wertheim, AJC News Research. Source: Rhode Island Office of the Child Advocate; states' ombudsman's offices. / DALE E. DODSON / Staff

Children's ombudsmen are a recent phenomenon in the United States, although other countries have had them for decades. Today, at least 19 states have some form of an ombudsman office, with many springing up in response to a child's death.

Their powers, duties and independence vary widely. But the American Bar Association's Center on Children and the Law, which has studied ombudsman's offices around the world, cites Rhode Island as a model other states should emulate. In recent years, several states, including Connecticut, have done so.

Rhode Island's Office of the Child Advocate is among the oldest, most powerful and most effective in the nation, says Howard Davidson, director of the ABA's Center on Children and the Law.

For 11 years, Laureen D'Ambra --- a lawyer recommended by a special commission, appointed by the governor and confirmed by the state Senate --- has held the post. Prior to that, she was the attorney for the state's child welfare department.

By law, Rhode Island's ombudsman must be an attorney with three years' experience. Davidson says if the advocate is not an attorney, someone on the staff should be "because so much of what they should be doing is guided by laws and court decisions."

To help protect the office from political influence, Rhode Island's ombudsman serves a five-year term, vs. the governor's four.

"The independence of the office is absolutely vital," says D'Ambra, whose office fields on average 600 complaints a year, in one of the least populous states in the country. All relate to the treatment of children. "We have to call it as we see it. You can't be worried about the political consequences of where an investigation might lead."

With an $800,000 annual budget, D'Ambra has three other attorneys on staff, plus two social workers with master's degrees.

By contrast, Barnes has proposed a $300,000 budget in a state with six times as many abused and neglected children and an overall population seven times larger.

The Rhode Island advocate's mandate is to investigate the deaths of children known by the state's child welfare agency, review complaints about the agency's care, recommend changes in child welfare policy and monitor the facilities where children are housed.

"If it's an issue involving children and we think we need to be involved, we'll take whatever action is necessary," D'Ambra says.

To accomplish their mission, she and her staff can interview any child in state care, show up unannounced at any facility, subpoena records and witnesses, lobby the legislature and make their findings public. "And we can sue," says D'Ambra, who calls that power the key to their success.

Court action is used only as a last resort, when the power of persuasion fails. But merely having the ability to sue, she says, brings people to the negotiating table.

"The importance of the ability to bring suit is it gives us the clout to do what we need to do for children," says D'Ambra, who in 11 years has brought only a handful of suits.

She's won every one, including the lawsuit in 1992 to close down the 92-bed residential facility run by the Rhode Island Catholic Church under contract with the state. In another, she brought suit to close a foster home. She also sued the state's juvenile detention facility where children were on a waiting list to receive an education because there weren't enough teachers and classrooms. As a result, there is no waiting list today, and the facility has a state-of-the-art school.

Influence reaches Georgia

Her office also has influenced legislation. D'Ambra was instrumental in getting Rhode Island to pass a minimum 10-year prison sentence for first-degree child abuse. This year her office is working with the legislature on a bill to ban improper restraint of children in state custody and on another to require fingerprinting of foster parents.

"She's very highly respected in the legislature," says the ABA's Davidson.

D'Ambra's national reputation prompted Georgia Rep. Georganna Sinkfield (D-Atlanta) to bring the Rhode Island child advocate here in January to testify to this state's Legislature.

Last session, before Terrell Peterson became the poster child of Georgia's child welfare reform efforts, Sinkfield introduced a bill to create an ombudsman for children. From the start, the bill had broad support. House Speaker Tom Murphy (D-Bremen) was the second to sign.

Then the Terrell Peterson story broke, and Barnes joined the effort, introducing his own ombudsman bill.

Sinkfield, who chairs the House Children and Youth Committee, had patterned hers after Rhode Island's. Under her bill, the advocate would be a lawyer, appointed by the governor to a four-year term and recommended by a nominating committee of judges, doctors, lawyers and others. The advocate would have broad powers, including the power to bring legal action.

But Barnes' bill initially differed significantly from Sinkfield's. Gone were the fixed term and the power to sue. Gone was the independent commission that would recommend three to seven candidates, who would have to be lawyers. Instead, the advocate would "serve at the pleasure of the governor."

Sinkfield balked.

"When you serve at the governor's pleasure, you're not free to do what needs to be done," Sinkfield says. "You don't want a person to lose their job for doing their job, because eventually you're going to rub somebody wrong."

Sinkfield says the governor has since agreed to set a three-year term and appoint a nominating committee like the one she recommended.

But until eight days ago he refused to grant the advocate authority to bring legal action.

A spokeswoman for the governor said that job belongs to the attorney general. "The role of the advocate, in our judgment, is to find the problems and bring them into focus," said Jocelyn Butler. "We have an attorney general to bring legal action."

But the attorney general's role is to defend state agencies when they are sued. Asked how the attorney general could both bring a lawsuit against a state agency and defend it, Butler then said it would require an amendment to the Georgia Constitution for the child advocate to have the authority to sue.

"As you know, constitutional amendments are difficult to make happen," she said.

But legal experts dispute the need for a Constitutional amendment. "There's no section in the Georgia Constitution that would prohibit a public officer from bringing suit against the state or an agency of the state," says E.R. Lanier, law professor at Georgia State University and an expert on the state constitution. "It's a pretty weak argument."

Power to sue is critical

The governor's staff points out that many states don't allow their child ombudsman to bring legal action. Davidson says most don't, and D'Ambra's power to sue is probably the most controversial aspect of Rhode Island's program.

But Sinkfield worries that without the ability to force a reluctant party to take action, Georgia's child ombudsman would be powerless.

"If you take the stick away, I just don't know what the advocate does other than record stuff and try to get people together," she says. "Nobody wants to go to court. But you can't prevent a death or intercede on behalf of a child if you don't have the power to do it. That's the essence of this bill. The advocate's role is to prevent deaths, not just count them."

Rep. Jim Martin (D-Atlanta) who chairs the House Judiciary Committee, proposed a solution. Instead of a blanket authority to sue, the ombudsman could use a "writ of mandamus," asking the court to order a person or agency to take a specific action that would fix the problem. The governor and Sinkfield agreed. Under a compromise bill that passed out of Sinkfield's committee last week, Georgia's child advocate could do some, but not all, that Rhode Island's can do. The advocate could subpoena records, interview any child in custody, visit any child's facility unannounced and go to the press to report how a child had died. She could report publicly on the case of a living child, as long as she didn't name the child and violate confidentiality laws. The advocate could refer a case to the GBI for criminal investigation but not order it.

However, she couldn't sue.

If the advocate felt the state was failing to protect a child, she could try to intervene by seeking a writ of mandamus. But Atlanta attorney Keenan says that's not good enough.

"The Pacific Ocean will border Columbus, Georgia before the child advocate brings a lawsuit through that complicated obstacle course," he says.

One other problem remains, Sinkfield says. Before filing the writ, the child advocate would first need the governor's approval. Sinkfield doesn't think the advocate should have to get the governor's OK.

She's hopeful they can resolve that issue before the bill goes to the House floor, which should happen early this week, and then to the Senate.

"If we really want to do something, then we ought to do it," Sinkfield says. "I'm not going to create a sham. We don't need another do-nothing office."

Jane Hansen is a staff writer for The Atlanta Journal-Constitution.