Beshear orders release of state records on child abuse, neglect deaths

beshear: 'horrifying details' in child death cases call for more openness

bmusgrave@herald-leader.comNovember 30, 2011 

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.

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