Judge orders state to release records of kids killed by abuse and neglect

judge: child-abuse deaths not private

bmusgrave@herald-leader.comNovember 4, 2011 

FRANKFORT — The state must turn over records regarding dozens of abused and neglected children who died while under state supervision, a Franklin Circuit Court judge has ruled for the second time in two years.

Franklin Circuit Court Judge Phillip Shepherd said in a ruling Thursday that the Cabinet for Health and Family Services has 10 days to negotiate turning over the documents with the state's two largest newspapers: the Lexington Herald-Leader and The Courier-Journal of Louisville.

Shepherd said state law dictates that child-protection records are private with one exception — when there is a death or a near-death of a child. The cabinet, however, has repeatedly ignored that exception, Shepherd wrote.

"The Court must conclude that the cabinet is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law," Shepherd wrote.

Cabinet officials said Thursday that they have not yet decided if they will appeal Shepherd's decision. Cabinet attorneys say they believe the ruling could affect "incidences of child fatalities or near fatalities that include no prior contact with the cabinet or the court system," said Jill Midkiff, a spokeswoman for the cabinet.

The cabinet's attorneys have previously argued that releasing the documents — which detail the state's involvement in a child's life — would run afoul of federal privacy laws, possibly causing the loss of federal funding.

Jon Fleischaker, a Louisville First Amendment lawyer who represents the Courier-Journal, said releasing the records will allow the public to determine for themselves if the state is adequately protecting children who are under its supervision.

"It's an opportunity for the first time in years ... to have some sort of community oversight on how the cabinet does its job, especially where there has been a tragedy," Fleischaker said. "We will be able to ask: 'What went wrong? Could the cabinet have done something better?'"

Both newspapers sued the cabinet in 2010 to get access to records regarding the death of Kayden Branham, a 20-month-old Wayne County toddler who died after drinking drain cleaner allegedly used to make methamphetamine. He and his teen mother had been under cabinet supervision at the time of Kayden's death.

Shepherd ordered the cabinet to release those documents, which showed that state officials had not conducted a state-mandated review of the circumstances surrounding Kayden's death.

Both newspapers then filed requests under the Open Records Act to get records about other children who have died of abuse and neglect while under the cabinet's care.

The cabinet denied both requests and then filed an emergency state regulation that limited the amount of information it could release about child deaths. The newspapers sued the cabinet again in state court in January. The cabinet tried to have the case moved to federal court, but that request was denied.

Shepherd, in his ruling on Thursday, said the cabinet did not properly promulgate its emergency regulation, making it void.

Shepherd also ruled that a host of people — many of them anonymous — who tried to intervene in the case to block the release of records did not have legal standing to do so.

Patrick Watkins — who was charged and later convicted of the death of his daughter Michaela Watkins — was allowed to intervene in the case, but Shepherd ruled that documents related to Michaela Watkins' death should be public.

Watkins was sentenced to life in prison for Michaela Watkins' death but that conviction was overturned. Watkins argued that releasing information about Michaela — who was found severely bruised and burned on March 11, 2007 — would be prejudicial to his trial.

Shepherd said in his ruling that the courts cannot "censor the press in order to protect a criminal defendant's right to a fair trial" because there are other ways to ensure a fair trial without violating the First Amendment.

B. Scott West, an attorney for Patrick Watkins, said his client is considering appealing Shepherd's decision but has not yet made a final decision. "We're looking at all the options," he said.

Shepherd said the cabinet and the two newspapers have up to 10 days to meet and discuss turning over the records and must file a report with the court.

The cabinet has said in court that there were 44 cases in the past two years that involved children who died or were nearly killed as a result of abuse and neglect while under the cabinet's supervision.

Meanwhile, the cabinet has not completed an annual report of child fatalities and near fatalities to the state's legislative branch, which was due by Sept. 1.

Midkiff said the cabinet expects to give the report to the Legislative Research Commission in December, as it did last year.

Midkiff did not say why the state has delayed turning over information to the legislature. The report does not include any identifying details or names of the children who died or who nearly died as a result of abuse and neglect.

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