Push for transparency

Advocates call for improving Kentucky’s public disclosure law pertaining to child abuse cases

If Kentucky’s going to improve its child welfare system, it must improve transparency. That was one message delivered during the daylong Step Up For Kids conference held at the Muhammad Ali Center on Monday. Organized by Kentucky Youth Advocates, one session took aim at Kentucky’s public disclosure law pertaining to child abuse and neglect cases, a law that recently earned a grade of “C” in a report entitled “State Secrecy and Child Deaths in the U.S.”

The Children’s Advocacy Institute, based at the University of San Diego School of Law, issued the report along with First Star, a nonprofit focused on helping abused and neglected children.

Speaking before a crowd of state workers, activists and service providers, Christina Riehl, a staff attorney from the Children’s Advocacy Institute, pointed out both the importance of transparency and areas where Kentucky falls gravely short.

“The consequences for a child who has fallen through the cracks can be dire,” she said.

Nationally, abuse or neglect leads to at least 1,770 child deaths annually and more than 509,000 kids endure serious harm, according to the U.S. Department of Health and Human Services.

Yet only about 4 percent of child maltreatment reports result in removal. So what about that other 96 percent? Are those cases unfounded? Or did a child in a terrible situation escape the attention of social workers and caregivers charged with protecting them?

“The only check we have in those cases where a child is improperly left in the home is public scrutiny,” Riehl said. “And when we don’t have public access and information about those cases, no one is talking about it.”

In essence, open records force public dialogue. (Both The Courier-Journal and Lexington Herald Leader have engaged in an ongoing court battle with the state for access to case files of children who have died or nearly died as a result of neglect or abuse. In December 2011, the Cabinet for Health and Family Services began releasing heavily redacted 2009 and 2010 case files.)

So why did Kentucky earn a “C” in the Children’s Advocacy Institute report?

Judged on five criteria, including ease of access to records and scope of information released, Kentucky lost points for the law’s “permissive” language. It reads information “may” be disclosed by the state in a case where child abuse or neglect has resulted in a fatality or near fatality.

The law’s language is “problematic,” Riehl tells LEO, adding that changing the word “may” to “shall” shouldn’t be too much of a bureaucratic mess.

Kentucky also lost points for its closed child abuse/neglect court proceedings.

A model public disclosure law would not only open courtrooms and ease access to files, Riehl says, but also provide timelines for the release of requested information and keep the cost of obtaining files reasonable.

The 2012 “State Secrecy and Child Deaths in the U.S.” report follows a 2008 report conducted by the Children’s Advocacy Institute. Since then, many states have climbed the grading scale. Tennessee, for instance, went from an “F” in 2008 for its public disclosure law to a “B+” in 2012, largely due to mandating the release of information in any case involving a fatality or near fatality. (Indiana has gone from an “A” to an “A+”.)

Federal law guides transparency within states. The Child Abuse Prevention and Training Act (CAPTA) recognizes the importance of confidentiality, but within this blanket of protection lies exceptions, specifically for cases where abuse or neglect severely harms or kills a child.

In order to receive federal funds under CAPTA, states must agree to comply with its requirements, one being public disclosure. In 2010, the Senate Health, Education, Labor and Pension Committee found that not all states had adequate transparency laws. The committee called upon the Department of Health and Human Services to devise clear guidelines, which were issued just within the last few weeks. One part indicates that not only should information surrounding the death or serious injury of a child be made available, but also information describing previous reports of child abuse or neglect that are “pertinent to” the case.

Riehl celebrates two words within those guidelines: “pertinent to.” By requesting that states hand over documents showing previous involvement with a family, media and advocates can obtain the “whole picture” of what interaction the state had prior to a child’s death or injury.

The Step Up For Kids conference is not the first event to shine light on the need for transparency in Kentucky’s child welfare system. In January, social workers, advocates and legislators convened for The Summit To End Child Abuse Deaths.

In addition to heralding openness, the summit recommended increased accountability and additional funds for the Cabinet for Health and Family Services. (Within CHFS, the Department for Community Based Services, which oversees child abuse cases, has had its budget slashed by $80 million in the last four years. However, Gov. Steve Beshear added $21 million to the most recent biennial budget to increase staffing.)

Teresa James, who was appointed commissioner of Community Based Services in December 2011, also addressed the Step Up For Kids crowd. She said transparency, accountability and trust remain priorities.

James highlighted the fact that the number of fatalities and near fatalities dipped from close to 80 last fiscal year to 55 this year. (That figure does not include pending cases.) In more than half of those 55 near deaths and deaths, the state had prior history with the family.

“I think that tells us we have to get better at the work we do,” James said. But she also touted Beshear’s recent formation of a review panel to comb over child fatality and near fatality cases. That panel will issue findings and recommendations annually.

“I believe this is a very strong statement from our governor about his commitment on behalf of Kentucky’s children and keeping them safe and being transparent in terms of the work of the department,” James said.

When asked if she supports strengthening the public disclosure law, making the release of information mandatory in cases involving death or serious harm, she said: “I’m open to any discussion that does anything to protect Kentucky’s children.”