Photography by Mark Peterman Jorge Franco Jr.

Jorge Franco Jr. represents dead children that he says Child Protective Services didn’t protect,
and so far, he’s won every case. Here’s an inside look at his seven-figure judgments and one of  Arizona’s most controversial agencies.

For Jorge Franco Jr., it will always be the most gut-wrenching moment in a stunning two-week trial over the grisly death of a 4-year-old girl.

Haley Gray spent her last conscious moments broiling to death in her mother’s car on a hot September morning. She had somehow locked herself in and couldn’t figure out how to get free. By the time she lost consciousness, her body temperature was an unlivable 106 degrees. Her brain was so swollen she was already brain damaged. Her organs were already bloated to dysfunction. She had taken off all her clothes, seeking some relief. She’d vomited on herself.  Nobody knows how long she’d been trapped in the car. If she cried out or screamed for help, nobody heard her. 

Haley’s mother wasn’t there to watch her or help her because she was passed out in the apartment after a night of binging on alcohol and cocaine.

Celene Gray was finally awakened that September 10, 2005, by the apartment’s observant maintenance man, Ken Owens. He noticed that Gray’s front door was open and worried about the little girl and two boys who lived there. The boys were fine, but Haley could not be found.

Owens called the Scottsdale Police, and they found Haley in the car. One of her brothers later said she’d gone to get the kiddie makeup her dad had given her earlier when he had a visit. Haley survived on life support for four days but died from the effects of extreme overexposure to heat.

Franco had relayed all of this to a jury in a Downtown Phoenix courtroom in the 2009 trial. He had filed a wrongful death lawsuit against CPS on behalf of Haley’s father. He told the jury how none of this would have happened if Arizona’s Child Protective Services had done its job and heeded the many reports that Haley and her siblings were in danger.

CPS vigorously defended itself, saying nothing it did caused Haley’s death. “The cause of death was simply a tragic accident,” CPS attorneys told the jury. “It’s the kind of tragedy that can happen to any family across America. Parents take naps and older children let younger children out of the house. Celene was tired from being up late.” They declared that Celene Gray was a “fit mother.”

But evidence in the trial – CPS’s own files, police records and files from earlier problems in Florida – told a very different story.

In April 2009, a jury found CPS 51 percent responsible for the death of 4-year-old Haley Gray, who died of heat exposure after being trapped in her mother’s car.

Arizona’s Child Protective Services – the agency charged with protecting children at risk – opened a file on this family in August 2004, just a few months after Celene Gray moved here from Florida. It started with a complaint called into the agency’s hotline, alleging this single mother was drunk and neglecting her children.

CPS admitted they had investigated and “substantiated” Celene’s drinking problem, but CPS staff only told her to get sober. On September 23, a day care worker called police to complain about Celene because she showed up drunk to collect her children. Celene drove away, only to get involved in a rear-end collision a few minutes later.

Police found her blood alcohol was .262 – more than three times the legal limit. CPS was called to the crash scene, took away the children and put them in a shelter. They told Celene to get help and prove her sobriety before she could get her kids back.

She tried to retrieve her children on November 1, but she showed up drunk, and CPS refused to give them back, court records show. They ordered her to seek even more help and went so far as to file a “dependency petition” with the court that gives the state legal custody of the children.

CPS agreed to give Celene’s kids back if she agreed to a rehabilitation plan that demanded she stay sober for a minimum of six months, attend Alcoholics Anonymous meetings and submit regular urine tests to prove her sobriety. But records show CPS didn’t enforce any of their demands. Three months later, Celene got her kids back on February 18, 2005.

On July 19, CPS granted her full custody of the children.

On July 29, two regular babysitters called CPS to report she was continuing to abuse drugs and alcohol and was a risk to the children. CPS ignored them both, records show, just as they discounted the constant calls from John Gray that his children were at risk. He begged them to call the Florida CPS worker who had handled the Gray case while the family lived there – a woman who could have told Arizona that the pattern they were seeing was the same destructive pattern Celene had established in the Sunshine State.

A CPS official told the court they didn’t see a need in calling Florida because “we already knew she was an alcoholic.”

CPS lawyers did find fault with John Gray, claiming that the father the agency considered a “nuisance” should be held responsible because he had returned Haley to her mother that day after a visit. If Celene were impaired, John should have seen it and refused to give his daughter back, they argued during the trial. He explained on the stand that Celene insisted he not come close to her and always demanded he return the children across a big public parking lot.  The judge told the jury not to even consider that John Gray was responsible because no evidence supported that theory.

By the time the jury reached its verdict on April 8, 2009, Jorge Franco thought he had heard every “lunacy…, absurdity and implausible theory” the state could advance. He thought the worst horror of this trial was telling Haley’s story and how CPS had failed her.

Yes, CPS was negligent in the death of Haley Gray, the jury ruled that day, but it also decided her drunken mother was 49 percent at fault. So the $875,000 judgment for Haley’s survivors was split. Arizona ended up paying 51 percent of that judgment, or about $446,000. As the verdict was announced, Franco says he felt sick to his stomach by what he saw.

“There were two risk managers for the state in the courtroom, and they were high-fiving each other upon the reading of the verdict – the state thinks they got off cheap. They don’t look at it as ‘a jury found us responsible for another baby’s death.’ They look at this as an economic problem,” he says.

Franco is the attorney who puts CPS under the microscope and attempts to hold it accountable for its mistakes. Since he stumbled into this field with a gruesome 2001 case, he has handled dozens of cases that have forced CPS to pay survivors millions of dollars because courts ruled that the agency didn’t do its job.

Through all these cases – with just two exceptions where the state of Arizona settled out of court – Franco says he has heard the same response from CPS every time it is sued for the alleged wrongful death of a child: “CPS is absolutely defiant of responsibility,” he says. “They deny, they deny, they deny, and then they fight. But the reason these kids are dying is their negligence.”

CPS, meanwhile, won’t talk about its role in these cases. Over several months, PHOENIX magazine repeatedly asked for comments and reactions from CPS officials; its parent agency, the state Department of Economic Security; and the Arizona Attorney General’s Office, which is the official attorney for the agency. We were told nobody at these agencies would talk about Franco or any of these cases.   

However, CPS does have defenders, both at the state Capitol and in the child welfare community. But for his part, Franco says he is determined to keep fighting back until CPS gets it right.

F ranco says he knows one terrible truth that has escaped most people, including those in the Governor’s Office and at the Arizona Legislature.

“I have yet to see the case where I have to challenge the system CPS has in place,” he says. “The system is adequate if it were followed. They have rules and regulations; they have a protocol manual: If this happens, you should do this; if someone calls you, here’s what you do. There is really a lot of redundancy. The failures are because individuals are making boneheaded decisions. They just don’t follow their rules and procedures, and when they don’t, guess what happens – somebody is going to die.”

There have been attempts to reform CPS in recent years. Former Democratic Governor Janet Napolitano sought a new culture at CPS when she took office in 2003, focusing on the “safety of the child” as the first order rather than the “reunification of families,” which had long been the agency’s mantra.

When that didn’t seem to help, another round of reforms in 2008 demanded CPS files be opened to the public whenever there was a death. Journalists who felt they had been stymied for years to get inside the workings of this agency responded enthusiastically; Franco, however, says he was not impressed.

“The reforms aren’t as big as they’re being publicized,” he says. “It’s all looking backwards, it’s all about things after a child’s death. I don’t see how that will do much to save kids. If you want to protect kids you have to be on the front end, and these laws don’t go to those issues.”