Part 3: Bureaucratic circumventing; avoiding disclosure by statutory maneuvering?
Is mandatory disclosure, being avoided by Bureaucratic circumventing?
Is Child fatality disclosure hindered by Bureaucratic circumventing and ignorance?
Part 3 of a 4 part investigative report
Bureaucratic circumventing
Circumventing is defined as:
- Find a way around (an obstacle).
- Overcome (a difficulty), typically in a clever and surreptitious way.
According to ACF in their Policy Interpertation Questions and Answers section, the only legally allowed reason to refuse disclosure in child fatality and near fatality cases is if that disclosure would jeopardize a criminal investigation or proceeding.
§ 7B-2902 does not comply with CAPTA because it limits disclosure in child fatality and near fatality cases, in a manner that CAPTA has found does not adhere to the intent of the law.
North Carolina’s child fatality and near fatality disclosure law only allows for the disclosure of findings and information if:
1. A person is criminally charged with having caused the child fatality or near fatality;
2. The district attorney has certified that a person would be charged with having caused the child fatality or near fatality but for that person's prior death.
If a person is not criminally charged with having caused the child fatality or near fatality, then a public agency, under North Carolina law, does not have to disclose findings and information about the child fatality or near fatality to the public upon request.
If a parent, caretaker, guardian or any other legally recognized person causes the death of a child by neglect, abuse, or maltreatment, then commits suicide, dies in a wreak fleeing the scene, is shot by police, or any other manner of death. A public agency does not have to release disclosure of the findings and information about that child fatality or near fatality, unless the District Attorney certifies that person would have been charged in the child’s death had they not subsequently perished.
Both of these reasons limit the disclosure that was intended by CAPTA.
Although, it seems that disclosure in these cases could be at the discretion of the County DSS office.
For Example, Cumberland County DSS was contacted on November 17, 2011, and asked to disclose findings and information in the murder/suicide deaths of 17-year-old Connor Maxwell and her brother, 15-year-old Cameron Maxwell, who died November 3, 2009.
In this tragic and heartbreaking case, William Maxwell shot and killed Connor, Cameron, and their mother, Kathryn, before turning the gun on himself.
Since no one could be charged for Connor, Cameron, and Kathryn's deaths Cumberland County could have refused disclosure in compliance with North Carolina law, instead Cumberland DSS disclosed that they had never received any reports of abuse concerning the Maxwell family.
Whether Cumberland County realizes it or not, disclosing in the previous case, while refusable under the laws of North Carolina, is what is required by CAPTA, so the disclosure that they provided is exactly what they are federally required to do.
For that reason, Cumberland County deserves praise for their disclosure in the Maxwell Case.
Out of the 26 counties in which child fatality disclosure was sought, one county relied on North Carolina's erroneous provision to refuse disclosure.
Gaston County Department of Social Services--Keith Moon, Director
Gaston County DSS was contacted requesting disclosure in the child fatalities of four children:
Austen Blake Minter II and Serenity Tyvon Minter
Austen Blake Minter II, 6 and his sister, Serenity Tyvon Minter, 3 were murdered, by their father, Austen Blake Minter Sr., on July 9, 2010.
Minter shot and killed Austen, Serenity, their pregnant mother, Tracy Lee Hedgepath and critically injured their sister, 7-year-old Destiny, before turning the gun on himself.
Minter had a very violent history, including, a history of domestic violence and firing two shots at his stepsister's head, which ended in a conviction for misdemeanor Assault (pointing a gun).
Why this man was not in prison for a very long time before he murdered his children and pregnant girlfriend and seriously injured his oldest daughter is another story.
Makayla and Kaylob Dean Peek
The other disclosure request concerned two siblings who died exactly 1 year and 9 months apart.
Makayla Peek, was 1 month old, when she died June 5, 2007, and her brother, Kaylob Dean Peek, was only 13 days old when he died March 5, 2009.
The details surrounding the separate deaths of these two infants are a matter of vigorous debate.
Makayla and Kaylob's deaths, almost two years apart, were both ruled "undetermined but consistent with SIDS", a finding local police disagreed with.
The night before Makayla died, witnesses at a local convenience store called police around 9:00 p.m., and reported that Makayla's mother, Joanie Hopkins and her boyfriend, Jason Michael Wilson were having a violent argument in a Gastonia convenience store parking lot.
Witnesses reported that Wilson had struck Hopkins causing her to drop her baby, Makayla, and was now holding Makayla by the throat in the parking lot.
1-month-old Makayla Peek died mere hours later.
The report does not contain any information about the police response to this incident, but it is reported that Hopkins and Makayla arrived home around 10:00 p.m., why Makayla, in light of witness testimony, was not immediately taken to the E.R. and examined after such a vicious attack is unclear.
It is also unclear if the police ever responded to the 911 calls and if they did why Makayla was left in her mother’s care after suffering such violence.
Hopkins told police that she took Makayla home, fed and burped her and then took Makayla to bed with her, at 2:30 a.m. when she answered Wilson's knock at her door with Makayla in her arms, they both realized the baby was not breathing.
Exactly, 1 year and 9 months later, Joanie Hopkins's infant son, Kaylob, died after she went to sleep with the baby in her bed and woke the next morning to find him cold and dead beside her.
According to the News and Observer article, DSS had received several reports on Joanie Hopkins pertaining to drug use and domestic violence.
Gaston County DSS declined disclosure in the deaths of these children stating in an email:
“…no person was criminally charged with having caused the child fatality and the Gaston County District Attorney, Locke Bell, did not certify that a now deceased person would have been charged with having caused the child fatality. Therefore, the Department is unable to release any information about this case at this time, due to NCGS 7B-2902 (b)(2) and (d)(1).”
Denying disclosure for this reason violates CAPTA, further, it does not allow public scrutiny in these cases, and effectively bars changes that could ensure that DSS better protects children.
Further CAPTA violations
Additionally § 7B-2902 reason for declining disclosure, because it is “Likely to cause mental or physical harm or danger to a minor child residing in the deceased or injured child’s household”, is specifically addressed by ACF in their Policy Interpretation Questions.
Another example of this bureaucratic circumventing is the refusal to disclose this information because it could interfere with the prosecution of the responsible person, or jeopardize the defendant’s right to a fair trial.
When it takes years for a criminal trial to reach its conclusion, denying disclosure for that amount of time, puts other children at risk.
The main reason for disclosure is to shine a light on any system issues or failures within Child Protective Services and ensure that those issues are quickly dealt with so other children do not suffer or die because of them.
Declining disclosure because it could interfere with an investigation, prosecution, or defendants right to a fair trial was the reason disclosure was refused in the majority of the requests.
Purpose of disclosure
The Children’s Advocacy Institute and First Star best explain the purpose for disclosure in their joint report, “State Secrecy and Child Deaths in the U.S.
“Information about these tragic incidents — information that helps drive systemic reform where warranted, and enables the public to hold child welfare systems accountable — is withheld by many jurisdictions. This is unacceptable”
“State plans must include “methods to preserve…confidentiality,” but they must also “allow for public disclosure of the findings or information about…case[s] of child abuse or neglect [that have] resulted in a child fatality or near fatality.” These provisions reflect an understanding that the value of confidentiality is greatly diminished in case of fatalities and near fatalities, for in such cases it is of overwhelming importance to examine the performance of the system as a whole and to learn from any mistakes or failings.”
“Public exposure is a necessary step toward fixing these problems. Each year, millions of taxpayer dollars go to support child protective services investigations. Accordingly, the public has a right to know if the laws for the protection of children are being followed and its tax dollars well-spent. Child abuse deaths and near deaths reflect the system’s worst failures. Until state laws require the release of accurate and unfiltered information, we cannot identify the fault lines in the system, and cannot begin to fix them.”
In other words, unless the information about these deaths is made public, especially those cases that had previous or current involvement with CPS, and exposed to public scrutiny then changes that could positively change the system of Child Protective Services, and better protect children are stifled by this lack of transparency.
Policy and law violations and system failures cannot be identified if they are allowed to remain hidden by confidentiality laws that were put in place to protect children and their families, but are instead being used as a means to bar public inspection and accountability of CPS.
Disclosure is necessary, so that problems can be identified and resolved, so other children do not die because of these same issues.
Up next in this series:
Part 4: Failure to meet disclosure criteria.
Is mandatory disclosure, being thwarted by insufficient findings and information?
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