By Tony Gonzalez, The Tennessean
A national child advocacy organization with deep knowledge of the Tennessee Department of Children's Services has asked a federal judge to force the department to turn over child death records, saying the agency may be "putting children at risk of harm."
Children's Rights, the New York-based firm that first sued the department over its treatment of foster children in 2000 and has kept close watch ever since, filed a motion in federal court Thursday after DCS repeatedly refused to provide records on child fatalities from 2011 and 2012.
What few internal records DCS did provide a month ago were "superficial" and "grossly incomplete" and made it "impossible to determine what transpired" in cases in which children died, the filing states.
The court filing revealed one case in which two children died inside the same Tennessee foster home within six months. Children's Rights said, in the court filing, that it had "serious concerns" about DCS' response in that case.
In another case, DCS allowed an infant to live in a house without electricity or water, and with a family who had a history of manufacturing methamphetamine, the filing states. The baby died. The court filing called the house "a mess" and said the entire family was sleeping in the living room.
"Plaintiffs have a good faith belief that serious problems concerning child fatality investigations may be putting children at risk of harm," the filing states.
The demand for records arrived amid mounting pressure on DCS. This week, The Tennessean, joined by a statewide media coalition, argued in Davidson County Chancery Court for access to records, lawmakers pressed the governor for an investigation into the department, and a state senator joined the call for DCS Commissioner Kate O'Day to be replaced.
"What we see here is a pattern of evasion by DCS," said Sen. Jim Summerville, R-Dickson. "They don't want to release the records, and they're going to dodge that whatever way they can. It's time for that to stop."
Summerville said he is weary of the DCS "runaround."
"We've got to make this right, and I think it's up to Governor Haslam to solve this," he said. "If we need to search the nation to find the very best person to run this department, then we should."
Representatives of DCS and the governor's office directed questions to the state attorney general's office, where a spokeswoman would say only that the filing was received and that a response would be filed in court.
Pressure has mounted on DCS since its September release of data - but no records - about the deaths of 31 children in the first half of 2012 who had prior contact with DCS or were in state custody.
Children's Rights has been applying the pressure much longer.
Together with a group of Tennessee attorneys, the firm sued DCS in 2000 over mistreatment of children in foster care in a case known as "Brian A."
A settlement out of that case, which remains in place today, sets numerous requirements for DCS and creates a system in which a group of child welfare experts monitor DCS and examine data.
In September, the attorneys asked for child fatality case files and the department's internal fatality review documents for 57 children who died in 2011 and through most of 2012 who had prior contact with DCS.
Of those deaths, 10 were children in state custody.
DCS and state officials made repeated promises to provide records, then delayed responses, and ultimately wrote Wednesday that they would not voluntarily provide all of the records, citing confidentiality concerns, according to a series of letters included in the court filing.
Over the course of three months, DCS provided 17 pages of internal fatality reviews, which look back at DCS involvement in a child's life.
The Children's Rights lawyers said those documents did not describe prior DCS involvement before death or whether policies were followed. On some pages, questions were left blank. One page was illegible. Another said "see back" but did not include the back of the document, the filing states.
In addition, DCS provided case files of 10 foster children, but no case files for children who were in touch with the department but not in state custody.
What was provided did not follow the department's early promises. In a Dec. 28 letter included in the filing, state Deputy Attorney General Martha Campbell wrote that officials were "attempting to locate" some internal fatality review documents.
In Campbell's letter on Wednesday, the tone had changed. Referencing "much thought and consultation" across state government, Campbell wrote that the state "cannot voluntarily provide" the records.
"The documents we are seeking involve child fatalities and the quality of investigations, and we think they're important to our role in Brian A. in making sure kids are safe," Children's Rights attorney Ira Lustbader said Friday.
"We tried to work through it, with the department, to get them, but we couldn't do that."
Part of what the group wants to examine is the quality of the department's internal reviews in cases in which children died.
"However, the extremely limited documents produced by (DCS) thus far reveal, at a minimum, a fatality review process that may be putting children at risk of harm," the filing states.
A wide impact
In the court motion, attorneys argue that fatality records must be made public according to federal and state laws - an argument rejected by state officials.
Children's Rights also says that as monitors in the Brian A. federal settlement, the firm is allowed to request that DCS provide "all information" that would show whether the department is complying with federal orders.
A status hearing for the Brian A. case has long been scheduled for Jan. 25, and the matter of the fatality records will be argued then.
Because a federal judge could rule on DCS compliance with a federal disclosure law, the outcome could have an impact beyond the state's borders, said Elisa Weichel, administrative director and staff attorney at the Children's Advocacy Institute at the University of San Diego School of Law.
Weichel's institute requests records from all states to grade responsiveness and transparency and has found wide discrepancies in how they meet federal requirements and volatility across the nation as states decide how they will comply with federal law.
"I'm not surprised that Tennessee is being restrictive in the information they are releasing," she said. "That's what we're finding in many, many states."