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Judge says 'ball dropped' when agency failed to report crimes against children

8:19 AM, May 11, 2013   |    comments
Davidson County Chancellor Carol McCoy. Courtesy: Tennessean
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After reviewing dozens of Department of Children's Services records on kids who died or nearly died across Tennessee, a state judge on Friday suggested that crimes were committed against children but their abusers were never prosecuted.

She called into question the basic competency of the $630 million child welfare agency.

Davidson County Chancellor Carol McCoy said in some instances it took the government up to six months to perform an autopsy on a dead child. Though she acknowledged that DCS doesn't handle autopsies, she expressed outrage that the state hadn't followed through.

"Failure to have an autopsy that is necessary to institute a criminal prosecution is essential," McCoy said. "In some of these instances, one must wonder why it's not there."

McCoy released limited and redacted records involving 42 children who died or nearly died under the agency's watch, representing less than a fourth of the total number of cases the newspaper and other outlets requested in September.

By press time, The Tennessean had conducted an initial review of 36 of the children's files, all concerning the deaths or near deaths of children in the first six months of 2012.

Among the records were the case files of 30 children who died after having some contact with DCS and six children who had "near fatalities."

Many of the records were not filled out until months after a child's death - raising questions about the accuracy of DCS accounts.

In one case, the fatality paperwork for a boy of unknown age wasn't completed until eight months after his death.

The DCS files detail tragedies inside homes, at state-run facilities and hospitals and on state roads.

The department investigated cases with children born prematurely and addicted to drugs, at least five instances of unsafe sleeping incidents, vehicle-related deaths, a fatal house fire and a case in which a 2-year-old girl was shot by her toddler brother.

In several cases of severe physical abuse, the records document gruesome and repeated abuse of children.

In one case in April 2012, a 5-month-old boy was found dead in a hot room inside a double-wide trailer that was littered with dirty laundry and dog feces.

Records show that DCS had come into contact with the baby's family six times since 2006, twice pulling a child from that family into state custody.

In another case, in June 2012, an 8-year-old girl was trying to soothe her fussy 4-month-old sister just before their father erupted into violence.

The older sister later told a DCS caseworker that she heard what sounded like a belt, more crying, and her father saying, "You are going to learn how to stop crying."

The beating death led to murder charges against the father and abuse charges against both parents.

The death came just more than a year after DCS first became involved with the family, according to 27 pages made available - although the department's standard fatality notification form was not provided. That record often details prior department involvement.

Missing info

Many of the children's records appeared lacking and some were missing legally required information.

Absent in at least five of the records was a "notice of fatality or near fatality" - documentation required by DCS' own policies.

Among at least five cases involving children in DCS custody was the May 2012 death of a teenager with a seizure disorder who was found unresponsive in his dorm room inside a DCS facility.

In that case, records reveal that multiple witnesses said facility guards did not regularly check on the teen.

There's nothing in the records to show that any state employees were disciplined.

Some of the files appeared to chronicle DCS interactions with children other than those whose death the report was filed about. One file was three pages, revealing little about DCS' interaction with a boy of unknown age.

The records also recount near-death situations, including children in foster homes.

A 5-year-old child at a foster home was playing outside with siblings but was spotted face-down in a children's pool by the foster mother. The fast-acting foster father performed CPR, reviving the child. The foster family was not cited for neglect or abuse.

The cases ranged from a 12-day-old girl found dead with a cigarette burn in the crease of her leg to an 18-year-old boy housed in an unspecified DCS institution.

In 21 of the 30 child deaths so far reviewed, DCS had been investigating the family before the child died. In most cases, their investigation had launched weeks or months before the child died.

 Abuse and neglect were identified in at least seven of the files reviewed - but many of the files lacked any specific conclusions about whether a child's death was the result of abuse even when they appeared to identify alleged perpetrators.

Long legal battle

For months, the attorney general's office, representing DCS, had fought vigorously in court to keep information about tragedies involving the children out of the public eye.

In December, The Tennessean and a dozen other news outlets sued DCS for those records.

In February, Kate O'Day stepped down as DCS' commissioner after two years at the agency's helm. She was replaced by interim chief Jim Henry.

Saying that the state agency's performance "has not been tip-top," McCoy said that the records reveal that "balls have been dropped" in the manner in which the state handled a sample of the state's abused and neglected children.

The state must release more than 200 cases The Tennessean and other media organizations have sought, McCoy said, setting May 31 as the date when an additional 50 limited and redacted cases must be turned over. The batch released on Friday includes about 1,600 pages of case files.

Reading the records, McCoy said, was emotionally taxing. Speaking candidly about the review process, she said: "It takes the starch out of me."

At times during the hearing, McCoy paused to compose herself.

It will be difficult to do justice to many of the neglected children, McCoy said.

"There are a number of these records which are equally hard because there is nobody to speak for these children."

For DCS, McCoy said the records review process could serve as a "learning experience" in record keeping. The concern about the agency's transparency raised by The Tennessean and other media groups was "well-taken," McCoy said, adding that the department has since taken steps to improve its methods.

"The DCS documents, as the judge noted, are incredibly painful to read and portray numerous tragedies," said Maria De Varenne, The Tennessean's executive editor. "But given the number of deaths and near deaths involving children, it is vital that these records are public so there can be transparent accountability and a review of what procedures were followed, or not followed, in each case."

8 missing records

McCoy in April ordered DCS to hand over redacted case files for 50 children who had contact with DCS before dying or almost dying in the months leading up to last July. DCS, in response, said it was unable to provide records of eight of them.

In court on Friday, Deputy Attorney General Janet Kleinfelter said the records are nonexistent because they never received referrals about the eight deaths, therefore there was never a state investigation.

"The records were never created because the law did not require the state to create them," Kleinfelter said.

Speaking hypothetically about the eight deaths in question, Kleinfelter said the fatalities could have resulted from natural causes, a congenital illness or a vehicle accident long after DCS had closed its investigation.

"If the department did not know of the fatality, (it) can't do any investigation," Kleinfelter said.

Robb Harvey, the Tennessean's attorney, countered that the state should produce death records for all children who have died within three years of a DCS investigation.

The eight missing records notwithstanding, McCoy said the remaining 42, and the more than 200 that the newspaper will eventually review, will provide ample evidence of the agency's performance.

"Be careful what you ask for," she said. "It's an overwhelming task."

Fee disputed

The state also has challenged what McCoy has ruled is a reasonable fee for producing the records. She ruled that 50 cents per copy, which is more than triple the standard price, is reasonable. The state disagreed.

A hearing on that matter will occur after the release of all 200-plus records, McCoy said.

The Tennessean's De Varenne said she hoped making the records public would make children safer.

"It is evident that DCS leadership is making changes to improve on many fronts. We hope by shedding light on how DCS handled these cases, that everyone - from lawmakers to civic leaders to concerned citizens - will have a better understanding of the issues and needs of the department and can help find solutions so children are better protected in the future."

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