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Child Protectors Defy Judge

January 20, 2012 permalink

In the ongoing power struggle between the Kentucky child protection agency (Cabinet for Health and Family Services) and two newspapers, the court has ordered the agency reimburse the newspapers for their legal costs incurred by Cabinet foot-dragging. The Cabinet tried to comply with a disclosure order by issuing documents so heavily redacted as to have no value to the press. Previous stories: [1] [2].

It has been our contention that in a power struggle between a judge and a state-funded agency (which this case has now become), the judge cannot win. Fines are useless, they just take money from one state treasury account and put it in another. The bill for the money paid to the newspapers will be passed on to the taxpayers, and have no effect on agency behavior. The judge does not have the power to stop the Cabinet's funding, that comes from the legislature. Kentucky law almost surely has a provision allowing an elected officer to dismiss the management of the Cabinet, comparable to what Ontario used in 2010 to dismiss the management of Huron-Perth children's aid. Unless Kentucky invokes an administrative provision of this sort, our guess is that the judge will lose the power struggle, and the records will remain secret or redacted beyond usefulness.



Judge fines state over child-abuse records, orders legal fees paid to newspapers

Phillip Shepherd
Judge Phillip Shepherd is critical of the agency.
Aaron Borton Special to The Courier-Journal

FRANKFORT, KY. — In a sharply critical decision, a judge has ordered a state agency to pay $16,550 in fines and $56,663 in legal costs to three newspapers for illegally withholding public records involving child abuse deaths and serious injuries.

Franklin Circuit Judge Phillip Shepherd also rejected efforts by the Cabinet for Health and Family Services to heavily redact, or remove, information from such documents. He said the cabinet was continuing its “efforts to blanket the operation of the child welfare system under a veil of secrecy.”

“Past experience has demonstrated that the cabinet will apply any privacy exception in the broadest possible manner, giving rise to an inevitable protracted court battle for anyone who seeks to discover the facts surrounding a child fatality or near fatality,” Shepherd said in a ruling issued Thursday.

Shepherd’s opinion and order Thursday involved a two-year legal fight by The Courier-Journal and Lexington Herald-Leader over access to records of child abuse deaths under the state open records law.

He issued a separate ruling Wednesday involving the Todd County Standard’s effort to obtain records in the case of of Amy Dye, a 9-year-old Western Kentucky girl who was fatally bludgeoned by her adoptive brother — a case that has outraged lawmakers and advocates because of the cabinet’s failure to follow up on reports of her abuse and neglect.

How the fine and fees break down

Shepherd’s orders direct the cabinet to pay $44,002 in legal costs to The Courier-Journal and $3,438 to the Herald-Leader.

Shepherd already has ordered the cabinet to pay about $20,000 to the two newspapers for costs of the first round of litigation.

And he ordered the cabinet to pay $9,925 in fines — calculated at a cost of $25 a day — for the period i which officials refused to provide records to the two newspapers.

Shepherd also ordered the cabinet to pay the Todd County Standard’s legal costs of $9,223, as well as $6,625 in fines.

Jon Fleischaker, a lawyer for The Courier-Journal, said Shepherd has ruled three times in the past two years that the cabinet must disclose information in cases in which a child dies or is seriously injured from abuse and social service officials had prior involvement with the family.

Fleischaker, who also represents the Todd County newspaper, said he hopes the cabinet is willing to drop the costly legal battle and follow the court order.

“Then we can get on to do what we need to do to try to make the system better,” he said.

Cabinet Secretary Janie Miller said in a statement that the agency is “weighing its options on the judge’s award of attorney’s fees and penalties.” But she claimed the ruling vindicated the cabinet’s battle to limit what it must release.

“It’s clear when weighed against the cabinet’s efforts to protect children from unwarranted invasions of their privacy, it was definitely well worth the price,” she said.

Shepherd ordered the cabinet to end its delays in providing records to The Courier-Journal and Herald-Leader. He said it must begin providing the newspapers with at least 1,000 pages a week of records of child abuse death and injury cases, with the first batch due Jan. 27 at noon.

The cabinet provided one batch of heavily redacted records in December, but the release of more records has stalled over wrangling about what information the cabinet may withhold.

Shepherd said he will permit only limited redactions, rejecting the lengthy list of information the cabinet wants to withhold as “inadequate and unreasonable.”

“In cases involving the death or near death of a child who the state agency has been charged with protecting, full public disclosure is the rule,” his order said.

Shepherd’s ruling Thursday came the same day cabinet officials appeared before the House Health and Welfare Committee, arguing that they should be able to withhold information they deem confidential.

“This issue is complex and there are human considerations to be addressed,” said Teresa James, the state’s acting commissioner of social services.

Christina Heavrin, general counsel for the cabinet, acknowledged that it had fought hard to defend its position in court.

“In pursuing this case, we were very vigorous and aggressive,” she said.

Rep. Tom Burch, a Louisville Democrat who is the committee’s chairman, advised the cabinet not to “circle the wagons” because the public wants to understand how it handles child protection cases.

“They want to know what’s going on over there,” he said

In December the cabinet — under an order from Shepherd — released an initial batch of documents related to child abuse deaths and serious injuries. But officials heavily redacted information — removing all names of children who were injured and the names of some of those who died from abuse or neglect.

Cabinet officials also withheld the names of other individuals in the homes — including perpetrators — even in cases in which individuals had been charged and convicted in child deaths. They withheld the names of counties where events occurred, the names of hospitals where children were treated and the names of police departments involved in criminal cases.

Shepherd Thursday rejected those redactions and released the same documents with far fewer omissions.

He said he will permit only limited redactions. They include the names of children seriously injured by abuse; the names of private citizens who report abuse — but not others, such as school officials, police or relatives; the names of siblings who are mentioned only because of their relationship to the victim; and minors who perpetrate abuse.

The cabinet may also redact Social Security numbers and details of public assistance, such as food stamps or Medicaid benefits.

The cabinet must document all information it redacts by subject, and any redactions not permitted by the court may be challenged by the newspapers, Shepherd said.

The cabinet will pay legal costs for any information he decides is wrongly withheld, Shepherd said.

Fleischaker said he doesn’t believe any information should be omitted but is willing to consider Shepherd’s decision.

“It’s a thoughtful basis for further discussion,” he said.

Source: Louisville Courier-Journal

Addendum: In what is likely the final chapter in the struggle between the child protectors and the press, the governor has appointed a Child Fatality and Near Fatality External Review Panel. It has the power to review deaths and near deaths and publish a report. The panel will see the details of each death, the public will see only the side of the story they want to disclose.



Beshear names panel to review near-deaths and deaths of youths

Gov. Steve Beshear announced Wednesday the 17 members of a panel that will review fatalities and near fatalities involving child abuse and neglect.

He created the Child Fatality and Near Fatality External Review Panel in January to help ensure that state agencies meet policies and standards in cases involving child abuse or neglect.

“In those instances when a child dies or is critically injured because of abuse or neglect, we must carefully examine the practices of the government entities whose job it is to prevent such tragedies,” Beshear said.

The panel will use staff from the Justice and Public Safety Cabinet. It includes members from law enforcement and social services, as well as representatives from all three branches of government.

Members are expected to meet quarterly to review records, case files and information relating to child fatalities or near fatalities. After the review, the panel will make recommendations for improving protocols, practice, training or other steps to keep children safe.

The members are Rep. Tom Burch, D-Louisville; Sen. Julie Denton, R-Louisville; Teresa James, commissioner of the Department for Community Based Services; Family Court Judge Brent Hall, of Elizabethtown; Dr. Carmel Wallace, a Lexington physician; Dr. Melissa Currie, a Louisville child abuse pediatrician; Dr. Tracey Corey, state medical examiner; Andrea Goin, a Henderson County Court-Appointed Special Advocate; Kevin Calhoon, representing peace officers who investigate child abuse cases; Joel Griffith, representing Prevent Child Abuse Kentucky Inc.; Jenny Pitts Oldham, Hardin County attorney; Sharon Currens, executive director of the Kentucky Domestic Violence Association; Dr. Ruth Shepherd, acting chair of the State Child Fatality Review Team; Robert Walker, representing practicing social work clinicians; Carmella Yates, representing addiction counselors; Maxine Reid, representing Family Resources and Youth Service Centers; and Judge Roger Crittenden, of Frankfort.

Crittenden will lead the panel.

Each year the panel will publish a report of case reviews, findings and recommendations.

Source: Louisville Courier-Journal