United States: DCS Withholds Files On Child Deaths

Last Updated: January 17 2013
Article by Waller Lansden Dortch & Davis LLP

Public can't scrutinize what agency did, or didn't do, to protect children who died

There is little known about the 31 Tennessee children who died in the first six months of this year after the Department of Children's Services got involved in their cases.

The dead included 23 babies, four toddlers, one 5-year-old and three teenagers.

They died after suffering broken bones, drug exposure, asphyxia and drowning. One 2-year-old boy died in a Lincoln County home fire. A Lauderdale County newborn was drowned in a toilet. Some deaths remain unexplained.

The Department of Children's Services continues to withhold details about the children's lives and deaths and what steps the state's $650 million child protection agency took — or did not take — to protect them.

DCS' unwillingness to open the agency's work to public scrutiny stands in contrast to a growing movement across the nation to increase accountability and transparency in child welfare agencies. It's a movement that child welfare experts have pushed in recent years to prevent future tragedies.

"The goal should be to get sufficient information to be able to evaluate whether appropriate actions were taken to protect children," said Noy Davis, a legal consultant for Washington, D.C.-based First Star, which advocates for abused and neglected children.

"The public needs to know what prior involvement the agency had with the family and was it handled properly and can anything be fixed so this doesn't happen again."

The state has denied multiple requests from The Tennessean to review the files involving child fatalities. The department said it had to weigh competing interests.

"The disclosure process for fatalities and near fatalities requires sensitivity and balance," DCS General Counsel Douglas Dimond wrote in response to the newspaper's request. "A child and family's right to privacy must be balanced against the public's right to know."

The Tennessean and its counsel sent a letter to DCS last week calling its disclosures "woefully inadequate" and asking the agency to make records public by Dec. 18.

States grant access

Dimond, the DCS attorney, cited federal policy and said agencies that receive federal funding to prevent child abuse are not authorized to release records involving children — even if they're dead.

But a review of other states shows multiple examples of officials routinely granting public access to case files and detailed timelines of case manager calls, visits and investigations relating to child deaths.

In Arkansas, officials cited the same federal policy as the reason it would increase public access to information about child deaths. That state began putting detailed information about child deaths online in a searchable public database.

In Colorado, the public can access routine fatality reviews that discuss whether department policies or state laws were violated by caseworkers.

In Oklahoma, child welfare officials release detailed information about their investigations that include a chronology of each previous report made to the agency about the child and steps the agency took to respond to those reports.

In Kentucky, where child welfare officials were reluctant to make public such information despite four court orders, a state attorney general's opinion in October noted that "full disclosure is often necessary to prevent such tragedies from occurring," criticizing the agency for "obfuscation."

In some states, the availability of records led to reforms in the state's child welfare system.

Inconsistent information

To date, DCS has provided limited details. Instead of providing the actual case files, the state has provided brief summaries to the newspaper.

The deaths occurred in 25 counties across the state.

Twenty of the children had been reported to the agency within the past three years.

In at least 13 cases, DCS had been alerted to concerns about children within the last six months of their lives.

In some instances, however, the information provided to the newspaper by DCS changed from month to month.

In September, a DCS summary of deaths listed an Anderson County infant who died Feb. 23 of "positional asphyxia."

By October, the summary had changed. DCS listed an Anderson County infant who died Feb. 10. There was no mention of the infant who died on Feb. 23.

On Friday, DCS spokesman Brandon Gee said the two notations were actually for one child, a baby he said died from "unsafe sleeping" in Anderson County on Feb. 10.

The department has conceded in the past that it has made a string of errors in releasing data about child deaths.

When DCS first released information on Sept. 18, it reported that 40 children had died in the first six months of 2012. Two days later, the agency revised that number downward to 31.

At the time, agency attorney Dimond admitted that DCS had been violating a disclosure law requiring the agency to inform lawmakers of each fatality and near fatality.

Oversight questions

In November, the Tennessean requested a smaller sample of child deaths or near deaths.

DCS again declined to make public any portion of the children's files or any record of the agency's interaction with the child. DCS said any of its prior involvement with the children in the sample was "not pertinent."

Tennessean Executive Editor Maria De Varenne called the response "woefully inadequate."

"The State has provided no investigative reports, fatality reviews, or task force reports, among other materials which are covered by The Tennessean's requests," noted a letter to DCS from the newspaper and Tennessean attorney Robb Harvey last week.

The newspaper's letter to DCS asked, "Where is the oversight for DCS' actions, and who is responsible for providing that oversight?"

DCS chief Kate O'Day and Gov. Bill Haslam told The Tennessean editorial board in October that there are multiple layers of independent review of the state agency.

"There's sometimes a sense where you think they have incredibly important work and they're out there operating on their own," Haslam said. "Nothing could be further from the truth if you look at all of the people who are overseeing us in one way or another."

DCS spokeswoman Molly Sudderth said last week that such oversight includes a Child Protective Investigative Team that operates in each county and investigates allegations of child sex abuse and severe child abuse. The team includes law enforcement, DCS and child welfare officials who evaluate whether a case can be prosecuted.

But Brian Holmgren, a Davidson County assistant district attorney who is on Nashville's Child Protective Investigative Team, said the group does not function as an independent assessor of the work of DCS.

He said its focus is on determining whether a child was a victim of abuse or neglect and whether there is enough evidence to prosecute the alleged perpetrator.

In addition, Holmgren said, the team relies solely on the information DCS presents to it and does not have access to a child's complete DCS file.

Holmgren said the team's findings are not public.

Sudderth also said oversight of the agency's work was provided by Child Fatality Review Teams overseen by the state Department of Health.

The teams of local law enforcement, health and child welfare officials operate in each of Tennessee's 31 judicial districts to review each child fatality in their region.

But those reviews do not examine complete DCS files or examine reports made to DCS before a child's death.

That is not their role, said Dr. Michael Warren, director for Family Health and Wellness at the Tennessee Department of Health.

Sudderth cited a last layer of oversight — an internal review by the DCS Office of Child Safety. That review is not made public either.

DCS has not yet responded to The Tennessean's Nov. 28 letter.

A spokesman for Haslam said: "The policy has been reviewed, and the governor and the Attorney General's Office are comfortable with DCS's position."

Originally published The Tennessean, December 2012.

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