Federal officials are threatening Oklahoma with a loss of millions of dollars if the state continues to make public the histories of children killed or nearly killed by child abuse or neglect.
Complying would mean Oklahomans would no longer have access to the types of reports that in the past have revealed massive failures in Oklahoma's child welfare system that contributed to deaths of children like Kelsey Smith-Briggs and Serenity Deal.
However, ignoring the demand would place Oklahoma's Department of Human Services at risk of losing more than $50 million in federal funds, officials say.
State and national child welfare reformers are incensed — calling the threat “irresponsible” and “unfathomable.”
“To follow what this letter says would be to go backward to perpetuate the culture that has led to the point of a class-action lawsuit and the death of a lot of children,” said state Rep. Jason Nelson, R-Oklahoma City, who is working on reform legislation that would make even more child welfare information available to the public.
Sparking their concern is a May 9 letter to Preston Doerflinger, interim director of the Oklahoma Department of Human Services, from Janis Brown, the Dallas-based regional manager for the federal Children's Bureau, Administration for Children & Families.
“Oklahoma's Child Abuse Prevention and Treatment Act and Children's Justice Act funding will be in jeopardy if the Administration for Children and Families determines the state is not compliant with these requirements and the deficiencies remain uncorrected,” the letter says.
“We think the federal Administration for Children & Families is just wrong,” said Elisa Weichel, administrative director and staff attorney for the national Children's Advocacy Institute.
How much to tell?
At issue is how much information the public has a right to know when a state's publicly funded child welfare system fails so badly that children like Serenity and Kelsey end up dead or critically injured.
Serenity, 5, died in June from a severe head injury less than a month after she began living with her father at the recommendation of DHS. Serenity was placed with her dad even though she was injured twice in January 2011, suffering bruises and blackened eyes during overnight visits with him.
Kelsey, 2, died from child abuse in the home of her mother and stepfather. A judge allowed her to remain in the home even though she had experienced serious injuries that included a broken collarbone, bruises and two broken legs in the months leading up to her 2005 death.
Normally, information about state child welfare activities is kept secret to protect the privacy of children and their families. However, The Oklahoman was able to report on what happened to Serenity and Kelsey because of an exception in federal and state confidentiality laws.
Under the exception in current state law, DHS and an oversight agency, the Oklahoma Commission on Children and Youth, are required to prepare and release reports when requested after a child has died from child abuse if the caregiver has been charged.
Those reports identify prior child abuse complaints regarding the families and what state child welfare workers did in response to those complaints.
Disclosure of what happened to Serenity, Kelsey and other Oklahoma children like them generated public outcry that precipitated a federal class-action lawsuit and current efforts to reform the state's child welfare system.
According to Brown's May 9 letter, state officials should not have released information about DHS contacts with those children, other than information about the specific incidents that caused their deaths.
That narrow interpretation of the federal Child Abuse Prevention and Treatment Act has outraged child welfare reformers.
“If the federal government is going to mandate that in death and near death cases we have to report information publicly, then they've got to allow the states to disclose the whole picture and not some arbitrary, small fragment of what really happened,” Nelson said. “That is irresponsible.”
“We're convinced that the confidential nature of these cases is what's contributed to a lot of tragedy,” Nelson said. “It's what's allowed a lot of things to go wrong for a long time.”
Nelson said he has asked federal officials for a legal opinion and case law on how to interpret the Child Abuse Prevention and Treatment Act, but has not yet received the information.
Nelson said he firmly believes that more disclosure, not less, is in the best interest of children. Nelson said he doesn't believe lawmakers would support any law that would do like the letter suggests make less information about child abuse histories available to the public.
“The public disclosure law that we've had so far doesn't go far enough, but it was very important in getting us to the point where we could do the kind of reform that we are doing,” he said. “What we've been working on the past few weeks is a really strong, robust public disclosure bill that we ... believe could become a national model law.”
“This is a big deal, but it's also a lot of money,” he said. “I don't know the total amount, but it's well in excess of $50 million that could be at stake.”
Weichel said national child welfare reformers are scrambling to respond to the letter.
The national impact of the letter could be “huge,” she said.
There are many other states that have interpreted federal law to allow the release of as much or more information than Oklahoma, she said.
They all thought the point of the law was “to figure out if the system failed these kids,” she said.
“In the sense that we need to know everything that happened to this kid and this family in order to know if something could have been done to prevent the death or the near death, we have to look at everything that led up to this incident,” she said.
“The fact that they're now saying that you can't look at anything beyond the final act of abuse or neglect that killed this kid — it's huge and it's unfathomable,” Weichel said. “We are definitely going to be taking some action.”
Doerflinger, Oklahoma's interim DHS director, issued a prepared statement that said DHS officials will work with federal officials on the issue.
“We intend to work with the Administration for Children and Families to ascertain if the state is implementing programs in a manner that is consistent with federal law and to the extent that program improvement is needed to bring the state into compliance,” Doerflinger said.