Kate O'Day, commissioner of the Tennessee Department of Children's Services / George Walker IV / The Tennessean
By Anita Wadhwani / The Tennessean
A former Department of Children's Services official said he personally briefed agency head Kate O'Day about her responsibility to inform lawmakers of each child fatality and near fatality in the state - a responsibility that DCS has failed to perform in the nearly two years since O'Day took office.
Former Legislative Director Aaron Campbell noted in a letter sent to DCS lawyer Douglas Dimond and to state lawmaker Sherry Jones on Tuesday that he had also written a report that included on its first page information about DCS' legal responsibility to inform lawmakers about such incidents.
The report was sent to every DCS director and regional director, he wrote.
The same report was hand-delivered to DCS Commissioner O'Day in her Knoxville office as part of a "transition notebook" for her review just after she was appointed to her DCS job in December 2010, the letter said.
And, Campbell wrote, "I provided it to her (O'Day) again in one of my first meetings in her DCS office after the inauguration," which took place in January 2011.
The agency last week released partial information about 31 children who died in the first six months of 2012. The children had all either been in state custody, the subject of an open DCS investigation or had been investigated but whose cases had been closed before they died. DCS released the information in response to a request by The Tennessean and Jones, a Democrat representing Nashville. Jones had made repeated requests for the information for more than two months.
At the same time DCS released that information, Dimond conceded that the agency in charge of child welfare had been violating the law in its requirements to report child deaths.
Dimond wrote in a letter to Jones that it did not appear that the agency had at any time since the passage of a 2005 notification law generated individual notifications to lawmakers of child deaths or near fatalities in their districts.
That, however, is not accurate, according to Campbell's letter and review of state law.
A 2005 law required the state to report all fatalities for children in state custody who were in a state facility at the time of their deaths. A 2010 amendment to that law expanded the requirement to also include children who were subject to an ongoing DCS investigation or an investigation within 45 days of the child's death or near-fatality. It also required notice to lawmakers for children whose deaths or near-fatalities prompted an investigation into another child in the household.
Contacted by the newspaper, Campbell said he personally called lawmakers beginning in June 2010 to inform them about each incident involving a child's death or near-death - a duty he continued until his departure in March 2011. Campbell began working at DCS in May 2008, he said.
Campbell said during his time at DCS, he would receive a daily email with reports of each fatality or near-fatality of children in the state.
And Campbell said he briefed his replacement at DCS.
"I also provided DCS' new legislative liaison with a copy of this document as well as verbal instructions on contacting legislators when required by law," he wrote.
On Tuesday, DCS released a statement that said:
"The department already has acknowledged that it was not in compliance with TCA 37-5-124 (the law requiring child notifications). Upon learning of that omission, we took immediate action to rectify the situation and already have begun sending lawmakers the required notifications of child fatalities or near fatalities in their districts.
"It appears Mr. Campbell's 2010 Legislative Report was included in a voluminous collection of transitional documents provided to the new administration. According to Mr. Campbell's own letter, he made the required notifications informally over the phone, and so this process apparently did not survive his departure from the department. The Tennessean has been provided with examples of the formal, documented process implemented to comply with TCA 37-5-124, and we are confident this process will ensure future compliance."
Campbell responded: "If Commissioner O'Day considers a banker's box a voluminous amount of material, then I suppose it's understandable that she never read the document."
Last week, O'Day said in response to a question about the agency's failure to report child deaths that the "law had been on the books since 2005 so I don't know what the process was at the time. I do know the statute had been on the books for a full six years before I got here. There are hundreds of laws that govern DCS. We could theoretically have done a review of those."
Jones said Tuesday that the information on child deaths is critical for her and the public to have to be able to assess how well the state is doing its job in protecting children.
"Obviously the department is not keeping up with what it's supposed to do," she said. "It doesn't seem to know the law. It's clear that the commissioner knew the information. She knew what she was supposed to do and she violated the law. Period."
Jones has called for an outside independent audit of the agency.
On Friday, Gov. Bill Haslam said he would begin his own review of DCS child deaths.
The Tennessean asked a spokesman for Haslam on Tuesday whether the governor had completed his review and what his findings are thus far. The governor's office has not yet responded.
Campbell said he wrote the letter after being contacted by Dimond, the DCS attorney, who asked him questions about DCS's notification process following a Tennessean article about child deaths and DCS's acknowledgment that it did not follow the law in keeping lawmakers informed.