Hearing Set in Media Lawsuit Seeking DCS Records of Child Abuse Deaths

By Erik Schelzig, Associated Press
NASHVILLE, Tenn. — The Tennessee Department of Children’s Service has been reporting to a federal court for more than a decade on how it is handling foster care, yet it faces no such scrutiny of its handling of children suffering from abuse or neglect.
The state reports that 120 children investigated by the Department of Children’s Services after reports of abuse or neglect died between 2009 and 2011. There were 31 more deaths during the first half of 2012, DCS says.
DCS refuses to divulge anything but bare details about the deaths, such as the child’s age, gender and home county. It won’t release what actions it took in the cases. DCS even keeps the names of the children who died secret.
The agency’s refusal to disclose its case records to the public is being challenged in court by a coalition of 12 news media organizations, led by The Tennessean newspaper. A hearing on the challenge is set for Tuesday.
A public records lawsuit by the coalition seeks to open the files on the children who died, arguing that “the public has a strong interest in knowing what actions DCS took — or failed to take — in order to protect them.” The group that filed the challenge includes The Associated Press and newspapers and broadcasters in Chattanooga, Knoxville, Memphis and Nashville.
Commissioner Kate O’Day has said privacy concerns about the children are the motivation for keeping details about their cases secret. The confidentiality requirements are “not to protect DCS, they’re really to protect the families,” she told The Tennessean.
Gov. Bill Haslam has said he agrees with the legal analysis by state attorneys that Tennessee isn’t required to release detailed information in the event of child deaths.
That stance is in contrast to other states, where judges, lawmakers and state officials have decided greater transparency improves child welfare agency performance or is required by public records laws.

O’Day and Haslam have declined to elaborate on the state’s privacy claim, citing the pending lawsuit.
The deaths reported by DCS included infants, toddlers, grade-schoolers and teenagers, and the causes included bodily fractures or injuries, gunshot wounds, natural causes and drug exposure.
The agency said it confirmed abuse or neglect in 47 cases, including a 10-month-old boy from Knox County who drowned in April after DCS closed its investigation. The DCS summary doesn’t answer if the abuse or neglect contributed to that death or if abuse and neglect had a role in any of the other deaths.
Advocates for abused and neglected children argue that state child welfare departments get more benefit than harm from greater transparency.
“It is critical for the public to be able to review information pertaining to abused and neglected children who die or almost do so,” said Noy Davis, a legal consultant for First Star, a Washington-based group that battles child abuse and neglect.
“The public access is necessary so that we can be assured that any systemic changes that need to be made to avoid the deaths of other children are in fact made,” Davis said in an email.
The DCS policy against disclosure predates the Haslam administration. In 2009, the department cited the privacy of surviving relatives in refusing to discuss its involvement in the case of a 15-year-old Dyersburg girl who accused her father of abuse and then was moved two doors away into foster care.
A week later, the father fatally shot the girl, her foster father and himself.
DCS has been under federal court oversight since 2001 after settling a class action lawsuit over its high number of children in foster care. The settlement limited the number of cases assigned to case workers, required better training and appointed a monitor to report on whether the state was making progress reducing the numbers of children living in institutions, placing siblings in the same foster home and many other measures.
The federal monitoring doesn’t review DCS handling of cases where children it had investigated died.
DCS is obliged to report such deaths to the General Assembly within 45 days. In September, DCS attorney Douglas Dimond acknowledged the department hadn’t been making the legislative reports.
In other states, there’s a trend toward greater transparency for child welfare agencies.
Kentucky, like Tennessee, had cited privacy in refusing to release records related to child deaths and near deaths. In 2011 it lost a two-year court battle over access to records waged by The Courier-Journal of Louisville, the Lexington Herald-Leader and the Todd County Standard.
A judge ordered the state to release files about the fatal beating of 9-year-old Amy Dye by her adoptive brother, and they showed social workers had ignored reports the girl was being abused. The commissioner of Kentucky’s Department for Community Based Services resigned.
The same judge last year ordered even more disclosure, telling the state the only information it could redact was the name of a child victim who was hurt but didn’t die.
Arkansas lawmakers in 2009 enacted a law requiring the public notice about the deaths children under state care, including the release of children’s names. The changes followed the deaths of four children in foster care.
In Florida, after 10-year-old Nubia Barahona’s partially decomposed body was found in the back in her adoptive father’s exterminator truck last year, the state Department of Children and Families released hundreds of pages of records about its interactions with the child and the family.
An investigation revealed that caseworkers missed the signs that Nubia was routinely abused. It was the biggest scandal to hit the agency since it was reorganized nearly a decade earlier in the aftermath of the Rilya Wilson case. That’s when officials found 5-year-old Rilya Wilson had been missing for more than a year before officials noticed — in part because a caseworker filed false reports saying the girl was fine.
Rilya’s case led to greater transparency standards, and a state child death review team releases records and case histories in cases of child abuse and neglect.
A 2011 report last year by the U.S. Government Accountability Office warned of flawed methods to tally and analyze the deaths of children who have been maltreated and found the latest annual estimate of 1,770 such fatalities is likely too low at least in part because of confidentiality and privacy constraints.
The GAO report also noted that states receiving federal grants to improve their data collection systems are restricted from releasing records, except in instances of neglect and abuse that resulted in the death or near-death of a child.

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