An Adams County foster parent was arrested for his 9th OWI. A foster child was in the car.

Adams County Health and Human Services Department (WSAW Photo)
Adams County Health and Human Services Department (WSAW Photo)(WSAW)
Published: Nov. 14, 2019 at 10:26 PM CST
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Three children were in the car on July 27 when Andrew Smejkal, a foster parent, was pulled over in Dane County and arrested for driving while intoxicated, according to court records. Almost three months later, 7 Investigates would learn that an error had occurred nearly a year previously during his foster care licensing process.

In the days following Smejkal’s arrest, 7 Investigates confirmed with the Wisconsin Department of Children and Families that Smejkal was a licensed foster parent in Adams County. Neither was this his first OWI: it was his ninth charge, and he has eight prior convictions. Recordings of the 911 call, obtained by 7 Investigates, indicate the third child in the car wasn’t his own, but a foster child.

The mother of two of the children had placed the 911 call. “They were scared,” a crying mother explained to the state patrol dispatcher, “Because Dad had been drinking all day.”

The DCF released a statement to 7 Investigates in the days following, in response to questions about the incident. “Andrew Smejkal is licensed for foster care by Adams County,” a spokesperson confirmed. “Wisconsin’s county and tribal child welfare agencies take their responsibility of protecting children in out-of-home care very seriously, and like any other case where a child(ren) may be endangered, will be assessing the safety of the child(ren) and taking steps to ensure safety is maintained.” Records obtained by 7 Investigates indicate the foster child was officially placed in a different foster home a few days after the incident.

But the biggest question was how Smejkal, who did not respond to an email request for comment, had ever been licensed in the first place. The Dane County Court has entered a not guilty plea on his behalf, while police records indicate he failed field sobriety tests before his July arrest.

His driving history had eight OWI convictions, most of which had occurred much earlier in life, and the most recent of which had occurred 10 years prior to his foster parent licensing. His license had been revoked multiple times throughout his life, and court records show he was also charged with driving without a valid license when he was pulled over and arrested in July.

Federal law provides for a permanent ban against foster licensing for serious crimes like murder, sexual assault and other violent felonies. Other crimes, including any felony charges of operating while intoxicated, are given five-year bars from licensing after the offense. Under Wisconsin law, an OWI only becomes a felony by the fourth occurrence.

States have the flexibility to determine what happens after the automatic 5-year bar on licensing. In Wisconsin, nearly all the crimes that require 5-year licensing bars also require a rehabilitative review to be conducted before licensing can take place. Passing this type of review does not guarantee licensing, according to the DCF, neither does it erase or expunge the person’s history. The system provides DCF approval to move forward with licensing, and is described as a robust process to examine how a person has changed since the offense.

On September 4, 7 Investigates requested the records for Smejkal’s licensing, including the rehabilitation review that would have been required under law. The following day, Smejkal voluntarily withdrew his foster parenting license, after another county finished an independent review of that license.

Weeks later, on October 18, 7 Investigates learned that the rehabilitation review records didn’t exist, because it had never happened.

“Initially, it was thought a rehabilitation review was not required,” Adams County Health and Human Services’ attorney Jacob Curtis wrote in a records response to 7 Investigates. A staff member was using an outdated version of the DCF form that listed crimes that barred a person from licensing—a form that indicated a 5-year ban, but no rehabilitation review, was required for Smejkal’s criminal history.

While the review that gauges the likelihood of repeat offenses had not taken place, his history with driving had been discussed at length during the home study interview, according to reports provided to 7 Investigates that were redacted to protect his wife’s identity, as well as medical history and other personal details for the couple. In those reports, Smejkal told the county that he took full responsibility for his wrongdoing, and considered himself a different person. Notes from the interviewers indicated they believed Smejkal was in a healthier relationship and at a better place in life than he had been at the time of his offenses.

Curtis provided a copy of an internal memo distributed to the staff following the discovery. “Earlier this month it was discovered that a significant practice error was made by a Children and Family Services staff member,” ACHHS director Kelly Oleson wrote on October 16. “This mistake was not made intentionally nor was it made in malice.”

The worker had failed to update the paperwork when the DCF standard had changed. “As a result, a foster parent was licensed prematurely without a required rehabilitation review,” Oleson wrote. Oleson declined an interview with 7 Investigates for this report.

“The County has taken aggressive and proactive steps to ensure a similar oversight does not occur again,” Curtis told 7 Investigates in an email. Oleson required that a plan for corrective action to be implemented, which included reviewing all 42 current foster parent licenses. None of the other licenses required additional attention from ACHHS following the review, Curtis said.

The DCF repeatedly declined an interview on camera with 7 Investigates throughout this investigation, but were responsive throughout to requests for information and providing background context for the foster parent licensing process.

“The out-of-home care picture is complicated, and one of the biggest complications is finding space for these kids,” DCF communications director Tom McCarthy told 7 Investigates in a phone interview prior to the fulfillment of the records request that revealed the absence of the rehabilitation review.

“We have to strike a careful balance between people who may have convictions in their past or circumstances in their life that trigger on this list, and the ability of a family in need to find a foster placement.” McCarthy pointed to statistics that indicate Wisconsin has one of the lowest maltreatment rates for children in the system.

Wisconsin ranks at 11 for safest states, according to 2017 Department of Health statistics that measure the percentage of children maltreated while in foster care. With just over 12,000 children in the system, .12 percent are maltreated, or less than 1%. The most dangerous states for children in foster care are New York at a little more than 3% maltreated, and Rhode Island at just over 2%.

Note: For a previous five-part 7 Investigates series on the role of foster parents in caring for children impacted by drug abuse, click here.

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