State, feds in $50M dispute over child-welfare law
BY GINNIE GRAHAM World Staff Writer
Sunday, May 20, 2012
5/24/12 at 3:30 PM
Read the warning letter to DHS
Click here for the report grading laws on child
abuse public disclosure laws
Read the survey of various laws by the U.S. Children’s Bureau
Despite a recent federal agency's threat to withhold $50 million, no state has been warned or disciplined for releasing too much information after a child dies from abuse and neglect.
That same agency, the U.S. Children's Bureau, conducted a survey showing that at least 27 states have more liberal laws when it comes to disclosing documents to the public after such child deaths.
Also, the disagreement between Oklahoma officials and that federal agency is causing concern among national advocacy groups wanting more openness in child welfare systems.
House Speaker Kris Steele said Oklahoma lawmakers will fight any effort to punish the state for being too transparent.
"We have no intention of letting federal bureaucrats make decisions that are not in the best interest of Oklahoma's vulnerable children," Steele said.
"It would be appalling and unprecedented if the federal government withheld money for vulnerable children because a state was open and honest with the public. In the unlikely event that they do take that unprecedented step, we're fully prepared to assert our state's rights and do what is necessary to protect the taxpayer assets that protect Oklahoma children."
On May 9, the Dallas-based office of the U.S. Children's Bureau, which is part of the federal Department of Health and Human Services, sent a letter to the state Department of Human Services stating that Oklahoma's current laws violated a federal confidentiality provision for abused and neglected children.
It warns officials it could withhold $50 million if the state does not change its practices.
The current law allows for the release of information after a child dies from abuse or neglect and the primary caregiver is criminally charged with causing the death.
At issue is how much information to release.
The Child Abuse Prevention and Training Act allows states to disclose "case" information after a child abuse death or near death.
The federal agency interprets "case" to mean only the incident causing the death. Oklahoma and other states allow for a review of all contacts between the agency and family prior to death.
"The difference is important, but 'case' does not mean 'last incident,' " said Noy Davis, legal consultant to First Star, a Washington, D.C., nonprofit advocating for abused and neglected children.
"The intent of the provision is clear, and it is to allow the public to get access to information when a child dies in order to make changes to prevent future and additional child deaths. This is the first we've heard of this kind of extremely limited interpretation.
"I would be surprised if this is actually what the agency is now interpreting and follows through with it. It goes against the legislative history and intent of the provision."
Having historical information is the foundation for reform, said Rep. Jason Nelson, R-Oklahoma City. He calls the agency's position "the worst kind of bureaucratic nonsense."
"If you just give a sliver of information - the last 48 hours of those children's lives, it's misleading," Nelson said. "It borders on being dishonest. It's a congressional mandate to do so according to this letter. I cannot believe Congress would have this in mind - to release a portion of information.
"The only effect would be to mislead or misinform the public. The only reason to have these laws is to hold an agency accountable. How can we hold an agency accountable if we have only half of the information?"
The federal agency is under the leadership of President Obama, who has repeatedly made promises of "unprecedented" levels of openness in government. The administration has also cut off access to mug shots of federal inmates.
A request for comment from the spokesman for the Children's Bureau was not returned.
The Tulsa World submitted a Freedom of Information Act request Monday seeking information about other states receiving similar letters and about sanctions imposed for releasing too much information. The request asks for a review of 10 years, which covers when the provision was implemented.
A response on Thursday stated that no state in the past decade has received a warning letter and no state has been disciplined in any way for violations of the confidentiality laws.
There are four measures pending in the Oklahoma House of Representatives that would lead to reforms of DHS, ranging from abolishing the oversight commission to strengthening criteria for employment as a child welfare worker.
House Bill 3135 is intended to open more records and notify the governor and legislative leaders of initial investigative findings in those cases. That bill should be ready by next week.
"We appreciated the federal agency offering input," Steele said. "We just think they're wrong. It's a prime example of misguided federal overreach into state affairs. There is no precedent for what they're claiming.
"Our suspicion is that the federal agency's conclusion was based upon the need to justify mid-level bureaucratic busywork, rather than any actual precedent or intent."
Steele said the bill will be sensitive to "personal privacy issues" and will not open entire case files.
"At the end of the day, the taxpayers who fund this system deserve all the insight possible under the law into how it is working," Steele said.
'Undermine the states' ability'
Oklahoma was given a B- in a report earlier this year conducted by the San Diego School of Law in California in partnership with First Star.
The groups have been pushing for more federal guidance to ensure that states release information to adequately monitor child welfare systems.
"Ideally, we learn from our errors," the report states. "Ideally, we have some accountability, particularly among public officials whose decisions may matter so profoundly to children who have no other protective remedy. In a democracy that has sensibly provided many checks for accused parents, we have only public disclosure and debate as a check on behalf of endangered children who are not protected."
Oklahoma's grade was hurt by its "severely restrictive conditional language," referring to requirement that the perpetrator must be a caregiver and be criminally charged before disclosing records.
In addition, the Children's Bureau - the agency threatening Oklahoma - has a survey of child welfare state laws as of June 2010 in a report by the Child Welfare Information Gateway.
It shows that at least 27 states and the District of Columbia disclose information in all child abuse and neglect cases. Five states will release documents when a person has been arrested or criminally charged with abuse or neglect.
Three states, including Oklahoma, require the alleged perpetrator of the abuse to be criminally charged before releasing information. Georgia and South Carolina are more restrictive, releasing information on deaths only for children in state custody.
After a death, information may come from different sources, such as law enforcement, court records and medical examiner reports. Thirteen states allow for disclosure to clarify or correct the records released by other agencies.
"There has been very definite progress made on this issue in terms of the release of information," Davis said. "So, the letter's interpretation goes against the whole intent of the provision. To do so would undermine the states' ability to evaluate what has happened when a child dies or nearly dies."
Examples of information from DHS records in child deaths
*Maggie May Trammel: After the 10-day-old Bartlesville girl died in November 2010 after being placed in a washing machine, DHS reports were released. Records showed the mother - Lindsey Fiddler - had six previous contacts with child welfare, most for drug-related incidents. One report indicated Fiddler had taken so many prescription drugs while pregnant that she could not speak clearly or walk stairs. She pleaded guilty and received a split 30-year term on a child-neglect charge and four years in prison on a second-degree manslaughter charge, running concurrently.
Adriana Hernandez: David Eugene Bridgeman and Paula Christine Najar were involved in two child welfare investigations before the May 2011 death of a toddler in their Glenpool home. The 21-month-old was a niece of Bridgeman and was temporarily staying with the couple. Bridgeman had told police he was frustrated about potty training her. He indicated he hit the child about the face and body, picked her up and threw her across the room onto a bed several times and then picked her up and threw her to the floor. In April, a jury found Bridgeman guilty of child-abuse murder and sentenced him to two life prison sentences, one without the possibility of parole. Najar pleaded guilty to two counts of child neglect and permitting child abuse. She will be sentenced June 11.
Emma Beth Warmerbrodt: DHS offered the family services in the months prior to the blunt-force trauma death Feb. 25 of the 15-month-old Dewey girl. The referral was for diaper rash, and the family did not show up for services. Marcus Trinidad Mitchell, 22, was arrested on a complaint of first-degree murder. His wife, Ashley Ann Mitchell, 23, was arrested on complaints of enabling child abuse and child neglect. Juanachellee Lanyl Fitch, 48, was arrested on a complaint of accessory. A preliminary hearing is set for June 19 for all defendants.
Aja Johnson: Was abducted and killed by her stepfather in Cleveland County. Her mother was found dead months before and a search began for the 7-year-old girl and her stepfather, Lester Hobbs. Their bodies were found in March 2010. DHS records showed a history of contacts with the family. DHS had an agreement in place with the natural father to keep the girl away from Hobbs. This agreement came after the agency had tried to keep the girl and her sibling with Hobbs. Information came from the Oklahoma Commission on Children and Youth as an oversight agency. Because Hobbs killed himself and was not charged with a crime, DHS denied public release of records.
Ahonesty Hicks: Before the 17-month-old died of a brain injury last May in Oklahoma City, her mother - Tiffany D. Hicks - tested positive for PCP when the girl's half-sibling was born. When DHS interviewed relatives and witnesses, no one voiced child safety concerns about her or her boyfriend, Deandre Wells. DHS put the family on a safety plan that included living with a family member and getting community-based services. Wells, 21, is charged with first-degree murder and child neglect in Oklahoma County with a trial set for June 18.
Ginnie Graham 918-581-8376