FRANKFORT — Kentucky will create an independent panel of experts to review cases of children who have been killed or severely injured as a result of abuse and neglect, Gov. Steve Beshear announced Monday.
The decision came as the Cabinet for Health and Family Services released thousands of pages of documents Monday that detail the state's involvement with dozens of children who were killed or nearly killed as a result of abuse and neglect. Still, the cabinet continues to withhold some case files and has redacted large portions of others.
It filed an appeal Monday with the Kentucky Supreme Court after a crucial legal decision last week in a lengthy court battle between the state and Kentucky's two largest newspapers, the Lexington Herald-Leader and The Courier-Journal of Louisville. The newspapers sued the state for access to social worker case files on children who were killed or critically injured as a result of abuse and neglect in 2009 and 2010.
Beshear signed an executive order Monday to create the external review panel. The 17-member panel, which will be based in the Justice and Public Safety Cabinet, will examine child deaths to determine whether state child-protection workers could have done more to protect a child and to determine causes of death.
"When a child dies or is critically injured because of abuse or neglect, we must carefully review the practices of all government entities involved to make sure that our system performed as it was supposed to — and if not, that review allows us to take disciplinary action," Beshear said Monday in a news release.
The group will meet quarterly and will prepare an annual report that identifies issues contributing to child deaths and injuries. The panel will include law enforcement, prosecutors and medical experts. The makeup of the panel will be determined by outside groups and Attorney General Jack Conway.
Cabinet officials said the panel's meetings will be open to the public, but it appears that records used by the panel would not be subject to the state's Open Records Act. Cabinet for Health and Family Services Secretary Audrey Haynes said the panel was not created to circumvent the state's disclosure laws. Even if information used by the panel is not subject to disclosure, the cabinet's case files will be available to the public under existing law.
"This is something that the governor told me he wanted to do shortly after I arrived," said Haynes, who was named secretary of the cabinet in April. "We've been working on this for several weeks ... before the Court of Appeals decision."
Many child advocates praised the creation of the independent panel Monday, saying it will help the state develop protocols and services to prevent more child abuse deaths. Kentucky averages between 20 and 30 child abuse-related deaths per year.
"The lessons we learn by reviewing child deaths have come at an enormous price — the life of a child," said Dr. Melissa Currie, chief medical director of the University of Louisville Pediatrics Forensic Medicine unit. "This action by the governor is to be commended, as it establishes a panel that will ensure that no child's death in the Commonwealth of Kentucky will go unexamined by objective and knowledgeable eyes."
The General Assembly considered a proposal in 2011 and 2012 to create a similar external review panel. The legislation passed the Democratic-led House but failed in the Republican-led Senate in 2012. It is likely that the legislation will be re-introduced in the upcoming legislative session to codify the executive order, cabinet officials said.
The Herald-Leader and The Courier-Journal sued the state in 2010 to obtain internal cabinet records involving the death of 20-month-old Kayden Branham, a Wayne County toddler who drank drain cleaner that allegedly was used to make methamphetamine. Both Kayden and his mother, who was 14 at the time, were under the supervision of the cabinet at the time of Kayden's death in May 2009.
Franklin Circuit Court Judge Phillip Shepherd ruled that the media was entitled to child-protection records when a child dies or nearly dies from abuse and neglect. All other child protection records are confidential, the judge ruled. The cabinet did not appeal that ruling.
The two newspapers then filed requests under the state's Open Records Act to obtain the case files of all children who died or nearly died from abuse and neglect in 2009 and 2010, but the cabinet at first refused to release the documents. The newspapers sued again, and Shepherd ruled in late 2011 that the newspapers were entitled to the case files.
The cabinet said Monday that there are about 140 case files from 2009 and 2010 that fall under the newspapers' request. Of those, the state had released redacted versions of 76 files. It released 43 more case files Monday.
Cabinet officials said other cases have pending court action and will be released after they have been adjudicated.
There is disagreement about what information in the files should be withheld from the public. The cabinet originally redacted a broad array of information — sometimes even erasing the names of people who had been criminally charged.
Shepherd ruled in February that the cabinet had 90 days to turn over the remaining case files. Shepherd also fined the cabinet $16,000 for withholding the records and awarded $57,000 in attorney fees to the newspapers.
The cabinet appealed that decision to the Court of Appeals, asking the court to stay Shepherd's order. In a July 9 ruling, a three-judge panel of the Court of Appeals refused to block the release of the documents.
The cabinet filed a motion Monday with the state Supreme Court asking it to stay the lower court's ruling, which would have compelled the cabinet to release the child abuse case files with limited information redacted.
"We disagree on how much personal information about the children and private individuals included in caseworker files should be made public," Haynes said in a written statement.
Kif Skidmore, a lawyer who represents the Herald-Leader, said the newspaper will oppose the cabinet's motion before the state Supreme Court.
"The Governor's executive order has no impact on our positions in the pending litigation," Skidmore said. "The Cabinet violated the Open Records Act by its wholesale refusal to allow inspection of the child fatality and near-fatality records and continues to violate the act by its insistence on redactions that are far beyond what the Open Records Act allows."
The records released by the cabinet so far have exposed shortfalls in the state's child-protection system.
For example, Judge Shepherd blasted the cabinet's handling of the case of Amy Dye, a 9-year-old girl who was killed by her adoptive brother in February 2011. Shepherd said the cabinet failed to protect the girl even though Todd County school officials had contacted the cabinet multiple times in the two years before Dye's death with concerns about possible abuse. The Todd County Standard, a weekly newspaper, successfully sued the cabinet to get access to Dye's records.
The cabinet said it did not investigate those complaints because the abuse was not at the hands of a parent or guardian.
In the case of Kayden Branham and his mother Alisha Branham, records show that social workers asked Alisha Branham's mother, Melissa Branham, to come in for drug tests at least 24 times. The difficulty in getting Melissa Branham to take drug tests should have prompted caseworkers to take a closer look at whether the state should remove Kayden Branham, child protection experts have said.
Alisha Branham later told authorities that she moved to the trailer where Kayden died because her mother did not have food for her son to eat.