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August 16, 2014

SC child-death panel’s work mostly secret

When a child dies unexpectedly in South Carolina, child welfare experts piece together the child’s life story, how he or she died and who, if anyone, could have prevented the death. But the experts’ insights into specific cases — once made public to highlight needed reforms — are kept secret.

When a child dies unexpectedly in South Carolina, child welfare experts piece together the child’s life story, how he or she died and who, if anyone, could have prevented the death.

But the experts’ insights into specific cases – once made public to highlight needed reforms – are kept secret.

Instead, the public is told only how many children each year have died from which causes in which counties — not whether the state agencies charged with protecting children missed a chance to intervene.

Assisted by the State Law Enforcement Division, the Child Fatality Advisory Committee is charged under state law with recommending ways to prevent more children from dying and improving the practices of agencies involved with children.

In 2009, for example, the child fatality committee called for reforms at the S.C. Department of Social Services after determining that the agency’s caseworkers too often failed to intervene in homes where parents or guardians were using drugs or alcohol around children who later died. The child fatality committee cited five cases as examples, and SLED gave The State newspaper access to some of the details and records.

Now, Social Services again faces questions about whether it has failed to protect children. But SLED, which houses the child fatality committee’s records, no longer is allowing access to completed investigations of children’s deaths or committee findings in specific cases that could give insights into whether state agencies are failing children.

SLED’s attorney says state law bars that agency or the child fatality committee from making public any of the committee’s records, two SLED spokespersons said.

Critics insist the public has the right to know what the child fatality panel knows. A former SLED director agrees, as long as ongoing investigations and victims are protected. And some legislators say they will look into how much secrecy is necessary.

“Especially when you have great policy concerns in the state when it comes to the care of children, why would we not want that (information) to be public?” said Sue Berkowitz, director of the Appleseed Legal Justice Center.

For example, the unexpected deaths investigated by SLED increasingly involve children who were part of Social Services’ child welfare system.

An analysis, done by one member of the child fatality committee, found 41 percent of the deaths investigated by SLED last year were of children who had had interaction with Social Services. That was up from 33 percent in 2009. The analysis also found that, while SLED reviewed fewer unexpected child deaths in 2013 than in 2009, the deaths of children associated with Social Services had remained steady at 67 a year for three years.

The questions now being raised about Social Services underscore the danger of keeping too much information behind closed doors, said Laura Hudson, vice chairwoman of the child fatality committee.

“It exposes the underbelly of what happens when you have too much secrecy,” she said.

‘No reason to protect children who are dead’

State law shields from public disclosure the investigations that SLED conducts for the child fatality committee, said SLED spokespersons Thom Berry and Kathryn Richardson.

However, Berkowitz and a public transparency advocate say the public has the right to know if children who die ever were in the government’s care and, if so, what happened.

Now, the law protects from public scrutiny the employees and state and local agencies who were charged with protecting the children – not the children themselves, said Jay Bender, a media attorney who sometimes represents The State newspaper. “There's no reason to protect children who are dead.”

State Sen. Larry Martin, R-Pickens, said he will ask a special Senate panel already reviewing the public’s access to other information, including autopsy reports, to look at the child fatality confidentiality law.

“There's always privacy concerns, and when you're dealing with minor children it gets even more difficult,” Martin said. “But you should be able to redact any information that would need to be withheld so that a review of that information could be made public.”

Sen. Tom Young, R-Aiken, who chairs a Senate panel investigating Social Services, said his panel, too, will review the law, weighing the need for transparency against the privacy concerns of children and their families.

‘Demonstrate ... what we’re doing’

Five years ago, SLED did not contend that child-death investigations, once complete, were completely confidential.

The child fatality committee’s back-and-forth deliberations on how to rule on a case should be private, and steps should be taken to protect the identity of child victims, said attorney Reggie Lloyd, who was SLED’s director in 2009. But once a case is closed, criminal investigations should be open to the public, he added.

SLED’s current reading of the law — that it requires confidentiality — is “unnecessarily broad,” Lloyd said.

But if that reading is correct, he added, the General Assembly should rethink the prohibition on public access to child death investigations by the child fatality committee and SLED.

The committee’s work could shed light on where local law enforcement or other officials, such as coroners who investigate deaths, may need more training or lack the necessary investigative tools, Lloyd said.

“The light of the press on this issue in (Social Services) has brought a lot to the forefront — that there are deficiencies in the system,” Lloyd said, adding that scrutiny should extend to law enforcement and prosecutors as well.

Todd Hagins, a former assistant U.S. attorney and SLED’s general counsel when Lloyd was director of that agency, said he and Lloyd gave a reporter for The State newspaperaccess to child-death details in 2009 because they saw it as falling within the scope of their duties.

Releasing details about the deaths helped “demonstrate to the citizens of South Carolina what we're doing to prevent child fatalities,” Hagins said.

What does fatality panel do?

The 18-member Child Fatality Advisory Committee is made up of the directors of state agencies that provide services to children and families, and eight other members who are appointed by the governor, including a forensic pathologist, coroner, pediatrician and child welfare advocates.

This year, for the first time, a state House and Senate member also have been added to the committee.

State law limits what documents, belonging to the committee and to SLED’s child fatality investigations department, are open to public inspection. For example, the committee is barred from disclosing documents or information obtained through subpoena. Disclosing that information could jeopardize the committee’s ability to get a future court order for confidential documents, SLED says.

Child fatality investigations also cannot be shared publicly, SLED says.

But not all of the committee’s findings are secret. The law allows the committee to release statistics and other “reports of the committee and department” that do not identify individuals.

The committee combs through law enforcement investigations, autopsy and medical records, and reports from state agencies to determine how children die, looking for spikes in accidental deaths such as drownings, shootings or suffocations.

Then, it publishes its findings with assistance from the S.C. Department of Health and Environmental Control. But that report contains no specific details about specific cases.

The most recent report available on DHEC’s website reports how many child deaths occurred each year in each county from 2006 to 2011 that were accidental, homicide, natural, suicide or of an undetermined cause.

Spotlight on Social Services

That report does not address the role — if any — of Social Services in the lives of the children who died.

Last year, Hudson, vice chairwoman of the child fatality committee, reviewed hundreds of cases that had come before the committee to track, for the first time, whether Social Services had been involved with a child who later died.

Hudson found that Social Services had prior involvement with 67 children who died each year from 2011 through 2013. Last year, those deaths accounted for 41 of the unexpected child fatality cases that SLED reviewed, up from 33 percent in 2009.

Questions about whether Social Services is doing all it can to protect children have been driven by a handful of high-profile child deaths, including at least two in the Midlands.

The state Senate formed a special panel, led by Aiken’s Young, to review Social Services. The panel has heard from child welfare advocates, parents, foster care givers, law enforcement, coroners, and current and former Social Services employees.

When Social Services leaders said state law barred them from talking publicly about individual cases, lawmakers passed a law — pushed by Gov. Nikki Haley’s office — to allow those officials to disclose some details in child death cases already known to the public.

‘Highlighting problems ... a good thing overall’

Hudson said she understands why SLED and the child fatality committee want to keep some documents secret. Releasing some information would jeopardize the committee’s ability to collect evidence, for example.

But, she added, the public’s knowledge of child deaths helps drive reforms.

Dr. Susan Luberoff, a pediatrician who chairs the child fatality committee, said she also sees value in the public having access to some information about the child fatalities that her committee reviews.

The media “highlighting problems in systems and problems with specific cases has certainly been a good thing overall,” said Luberoff, a University of South Carolina professor and an expert in child abuse pediatrics. “It's brought a lot of attention and helped to refocus resources.”

But she added that the child fatality committee benefits from its members being able to talk openly and confidentially about cases behind closed doors. She also thinks any information released publicly about child deaths should come from other agencies.

“As far as the committee being the conduit for specific information about cases, I don't see that as our role,” Luberoff said.

State Sen. Katrina Shealy, R-Lexington, the child fatality committee’s newly appointed Senate representative, said lawmakers should consider whether the public should have more access to what goes on inside state agencies, including Social Services.

Shealy, a member of the Senate panel investigating Social Services, said that agency has been troubled for years, but no one has done anything about its problems.

“The media has helped in this situation ... by making it where people have gotten angry about it and made somebody do something about it,” Shealy said.

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