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Governor vs CPS
November 30, 2011 permalink
A brouhaha has been developing in Kentucky for the past few months over records of children dying in foster care. A judge had previously ordered the Cabinet for Health and Family Services (CPS) to give a newspaper records of foster children who died or nearly died. Now Governor Steve Beshear has announced that the records will be released.
Fixcas will be watching this case. Past confrontations between elected government and child protection bureaucrats over record disclosure have been won by the bureaucracy. California keeps records of dead children secret even after a law requiring their publication.
Beshear orders release of state records on child abuse, neglect deaths
FRANKFORT — After repeated calls for more transparency, and multiple lawsuits, Gov. Steve Beshear announced Tuesday that the state will release records of children who have been killed or nearly killed as a result of abuse or neglect.
At a Capitol news conference, Beshear announced that he also will introduce legislation in the upcoming session that would create an independent review panel to look at child fatalities and near fatalities and will propose legislation that would make it mandatory for the state to release records of such deaths.
In addition, the Cabinet for Health and Family Services will conduct a thorough review of the child-protection system and make changes if necessary, he said.
But not long after the press conference, the cabinet filed a motion in Franklin Circuit Court in a legal battle, saying it wanted to turn over heavily edited or redacted versions of the records.
Beshear acknowledged that some information would be redacted, but he said, "Transparency will be the new rule.
"Many experts, including those in Kentucky, adamantly believe that a system that stresses confidentiality is in the best interest of the child and usually leads to better outcomes. Their concerns are legitimate. But I think the time has come — given the horrifying details of a few cases — for the balance to tip toward increased openness."
The Lexington Herald-Leader and The Courier-Journal had sued the state over the records of children who died while under supervision of the Cabinet for Health and Family Services, which oversees child protection.
Franklin Circuit Court Judge Phillip Shepherd has ruled twice that the two newspapers were entitled to the records. State law says that child-protection records are private with one clear exemption: the deaths or near-deaths of children resulting from abuse or neglect, if the children had previous contact with the cabinet.
Beshear's announcement came a day before a Wednesday hearing about whether the cabinet was going to turn over the records as Shepherd ruled Nov. 3.
The two newspapers have asked that Shepherd issue an injunction and make the cabinet turn over the documents by Dec. 2, and they have requested that the state list all fatality and near-fatality cases in which the cabinet conducted an internal review.
The cabinet's 21-page motion asked that Shepherd deny the injunction and that he order the release of redacted versions of the records. The cabinet argues that it is common practice for state and federal governments to redact such things as Social Security numbers and other identifying information. In addition, the cabinet wants to redact the names of people who report abuse and a host of other information.
That's not transparency, said Jon Fleischaker, a Louisville lawyer who represents the newspapers. Shepherd's previous rulings are clear: The cabinet must turn over all the records, Fleischaker said.
"It's outrageous," Fleischaker said. "How many times are they going to argue this?"
The cabinet has repeatedly argued that releasing the documents — which detail the state's involvement in a child's life — could run afoul of federal privacy laws and cause the loss of federal funding.
The cabinet argued in the motion filed Tuesday that no state allows full disclosure of child fatality records.
Beshear said Tuesday that how those documents will be released will be determined after the hearing Wednesday in Shepherd's court.
When asked why the cabinet decided to turn over the records after nearly two years of legal fights and tens of thousands of dollars in legal fees, Beshear said the issue was complicated.
"This is a very complex issue because it involves the safety and protection of children. ... If you review the statutes of the 50 states, you will see statutes all over the place."
Kentucky's laws are permissive, saying the cabinet may release the records, Beshear said. He said he will propose legislation in the next session that would make it mandatory for the state to release such records.
"There is still a lot of gray area out there," and the legislature should fully debate the issue, Beshear said. "Mandatory disclosure should be accompanied by clear guidance by the General Assembly."
Fleischaker countered that Beshear is wrong.
Shepherd already has ruled in several cases that it is mandatory for the state to turn over the records, Fleischaker said.
"Any legislative effort can only hurt us and hurt the public since it is now all open," Fleischaker said.
Beshear said that under his proposed legislation, an independent panel of doctors, social workers, forensic experts and law enforcement officers would review all cases of child fatalities and near-fatalities in which the cabinet was involved. The panel would then determine what needed to be changed, Beshear said.
"More than any other step, this will improve our system of child protection," Beshear said.
Beshear has pushed similar legislation in previous sessions. But earlier bills, which failed to pass, would have kept secret much of the information regarding the fatalities. Beshear said Tuesday that he would want the panel and its decisions to be open.
Rep. Tom Burch, D-Louisville, the longtime chairman of the House Health and Welfare Committee, said Tuesday that he supported Beshear's efforts but that he cannot support any measure that does not increase transparency in child protection. Burch and Sen. Julie Denton, his Republican counterpart in the Senate, have said they want to hold hearings in December about child fatalities as a result of abuse and neglect.
"I think it's a good first step," Burch said. "I would hope that it would include full transparency, not only in that cabinet but in all cabinets."
One of the state's leading advocates for children applauded Beshear for pushing to improve child protection.
"Today was an important beginning," said Terry Brooks, executive director of Kentucky Youth Advocates. "But it was only a beginning."
Brooks said the legislature should conduct a comprehensive review of the state's child protection system.
Both newspapers had sued the cabinet in 2010 to access records regarding the death of Kayden Branham, a 20-month-old Wayne County boy who died after drinking drain cleaner allegedly used to make methamphetamine. Shepherd ruled the cabinet had to turn over the records in that case. The records showed that the cabinet never did a fatality review, which it is required to do by law.
The two newspapers then filed requests under the state's Open Records Act, asking for more records on children who have died as a result of abuse and neglect. The cabinet denied those requests and the newspapers sued the cabinet again in January.
In another case, the Todd County Standard, a weekly newspaper in Western Kentucky, sued the cabinet over records involving Amy Dye, a 9-year-old girl who was beaten to death by her adoptive brother in February. The cabinet at first told the Todd County Standard that it had no records regarding Dye's case because it did not do an internal fatality review of Amy Dye's death since the death was a result of abuse by a sibling, not a parent or adult who had custody of Amy.
Shepherd, in a ruling that ordered the cabinet to release records in Dye's case, criticized the cabinet's handling of repeated reports of possible mistreatment of Amy Dye in the years before her death.
Beshear said Tuesday that he had confidence in the state's case workers: "They have one of the most difficult jobs that exist." Beshear also said he had full confidence in Cabinet for Health and Family Services Secretary Janie Miller.
Source: Lexington Herald Leader
As a rule the bureaucracy wants to conceal the children that died in its care, and expose those dying in parental care. That pattern is continuing in Kentucky, where the first release of documents was redacted, suppressing the most sensitive names. The only new name in this article is Jaislyn Green, a baby who died in parental care. The bureaucracy has won the first round.
Kentucky begins releasing child-death records; newspaper questions redactions
The state began releasing documents Monday about dozens of children who were killed or nearly killed from neglect and abuse in 2009 and 2010.
The Cabinet for Health and Family Services released redacted versions of 85 internal reviews that it conducted of deaths and near-deaths in cases in which it had previous contact with the family. Of those cases, 35 involved deaths and 43 involved near-deaths. In seven instances, it was unclear from the documents whether the child died.
The 353 pages are the first batch of many documents that Franklin Circuit Court Judge Phillip Shepherd has ordered the cabinet to turn over to the Lexington Herald-Leader and The Courier-Journal of Louisville.
However, much of the information contained in the reports — including the names of at least eight children who died as a result of abuse and neglect and the names of people charged with their deaths — had been redacted.
Robert Houlihan Jr., a lawyer for the Herald-Leader, said the newspaper will challenge the state's many redactions in court.
"That is totally contrary to the letter and the spirit of the judge's ruling," Houlihan said of withholding the names of children who died. "Where there has been a fatality, there can be no justification that I see to redact that name of the dead victim."
A Herald-Leader review of the documents shows a lack of consistency in how the cabinet conducts internal reviews, which are required by law after a death or a near-death of a child who has had previous contact with the cabinet.
Some reviews are lengthy and thorough, including an analysis of what social workers could do differently to prevent similar deaths. But some internal reviews consist of one page that doesn't even say whether the child died.
Terry Brooks, the executive director of Kentucky Youth Advocates, said it's difficult to say whether the internal reviews are generating long-term solutions that protect children, which is what they were intended to do.
"If children dying does not demand a formalized process, you have to ask yourself, what does?" Brooks said. "If you don't have the protocols that produce data on which you can make decisions, then you're missing the boat."
The reports show that substance abuse and domestic violence were chronic problems for families in which children were killed or badly hurt. The documents also show that most child fatalities were preceded by multiple reports of suspected child abuse or neglect.
The documents were released after a two-year legal battle between the newspapers and the cabinet, which oversees child protection.
Franklin Circuit Judge Phillip Shepherd has ruled twice in the past two years, most recently on Nov. 3, that child-protection records in the case of a death or near-death should be public. But the cabinet resisted releasing the records until Gov. Steve Beshear announced Nov. 29 that they would be made public.
Christina Heavrin, general counsel for the cabinet, told Shepherd during a Nov. 30 court hearing that it will release about 180 case files at a later date after the state has redacted certain information from the files. The cabinet has said it will have to hire temporary staff to help with those redactions. The case files will contain more detailed information than the internal fatality reviews.
In the documents released Monday, the cabinet redacted the names of some children who died from neglect and abuse and withheld the names of all children who were seriously injured. In the written protocol that it provided workers who redacted the information, the cabinet said it would be improper to include the names of children who nearly died because "the trauma the child already suffered should not result in a constant reminder by releasing his/her identity."
In many cases, the cabinet also withheld the names of people who allegedly abused or killed children; the counties where fatalities and near-fatalities occurred; and the names of people against whom allegations of abuse were substantiated.
In one instance, the cabinet redacted the name of a hospital where a one-year-old child — who had ingested some of his mother's prescription drugs — was initially treated in August 2009.
Some information that the cabinet took out would be public in other places. The name of a man who faced criminal charges for allegedly throwing an infant to the floor in April 2009 was deleted. However, criminal charges are public record.
Houlihan said the newspaper would have to look closely at the issue of redacting the names of injured children and address that with Shepherd.
Houlihan said there was nothing in Shepherd's order that would allow the cabinet to withhold the names of people that it decided had abused or neglected children. He also said there was no discussion of allowing the cabinet to redact the names of people charged with crimes.
"That seems to be turning this whole thing on its head," he said.
During a recent court hearing, Shepherd said only a limited amount of information, such as Social Security numbers and names of other minor children in the family, should be redacted from the files.
The cabinet is required by statute to conduct internal fatality reviews for "any case where child abuse or neglect has resulted in a child fatality or near-fatality and the cabinet had prior involvement with the child or family."
According to the statute, those reviews must provide a summary that includes an account of the cabinet's actions in the child's life and "any policy or personnel changes" that resulted in the child's death, and they should note what type of assistance the agency received from outside agencies.
During the Nov. 30 court hearing, Heavrin said the internal reviews are informal and that there are no standard forms or uniform summaries of the internal reviews.
Some of the documents review by the Herald-Leader on Monday contained limited information about the cabinet's previous involvement in the family's life and little or no information about potential changes to cabinet policy.
For example, little follow-up is noted in a March 2, 2009, near-fatality review of a child who went into cardiac arrest and was taken to the Kosair Hospital emergency room with bleeding on the brain, a lacerated liver, and bruising in his eyes, back and abdomen. There is nothing in the report that shows that the cabinet looked at previous reports of abuse or tried to determine whether there were things the cabinet could do better.
In contrast, social workers who did an internal review of the death of Jaislyn Green, a 20-day-old infant who suffocated in January 2009 while sleeping with her mother on the couch, looked at the cabinet's previous involvement and listed several areas of improvement.
The day after Jaislyn Green's death, the mother tested positive for opiates and other drugs. The cabinet had received previous reports that the parents were on drugs and apparently had opened a case file. In its review, the cabinet found that it should not have accepted that the parents were unable to pay for drug testing.
"Staff should have considered filing a petition in court due to their lack of compliance," the internal review found. The review also found that hospital personnel need to understand the importance of drug testing infants and mothers at the time of birth.
Jill Midkiff, a spokeswoman for the cabinet, said the reviews have generated long-term changes at the cabinet.
"Specifically, in early 2011, the agency used information from the internal reviews, in conjunction with information from other sources, to develop a new protocol for consultations related to investigations of abuse of children age 4 and under — the age group most likely to experience lethal abuse," Midkiff said.
State law also requires the cabinet to submit an annual report by Sept. 1 to the legislature and the governor that contains "analysis of all summaries of internal reviews" from the previous year.
Child advocates and some lawmakers have criticized the cabinet for failing to meet the Sept. 1 deadline the past two years. This year and in 2010, the cabinet did not provide the report until December.
There have been at least two cases since 2009 involving a child death from abuse and neglect when the cabinet has admitted that the required internal review was not conducted.
In 2009, the Herald-Leader and Courier-Journal sued the cabinet for records about 20-month-old Kayden Daniels, also known as Kayden Branham, who died after drinking drain cleaner allegedly used in the production of methamphetamine.
Kayden and his mother, who was then 14, were under the supervision of the cabinet at the time of his death. The cabinet admitted in court proceedings that no one had conducted an internal review after Kayden's death.
Cabinet officials also admitted this year that no one conducted an internal review after the death of Amy Dye, 9, of Todd County, who was beaten to death in February by her adoptive brother. Cabinet officials have said they did not think the cabinet had to do an internal review of Amy's death because Amy was killed by her brother and not a custodial parent.
The cabinet had told the Todd County Standard, a weekly newspaper, that it had no records regarding Amy or her family when the newspaper asked for the cabinet's records involving Amy shortly after her death in February.
The newspaper sued the cabinet, and Shepherd subsequently released documents showing that the cabinet had received multiple reports about possible abuse and neglect of Amy in the years before her death.
The cabinet has said Amy's death was not included in the 18 child fatalities listed in the 2011 report that it sent lawmakers earlier this month. The omission has many child advocates and legislators concerned about the validity of the cabinet's reports to the legislature.
Rep. Tom Burch, a co-chairman of the Interim Joint Committee on Health and Welfare, said early Monday that most of the panel's Dec. 19 meeting will be about the cabinet's handling of child-fatality cases.
Source: Lexington Herald Leader