Part 4: Failure to meet disclosure criteria.
Is mandatory disclosure, being thwarted by insufficient findings and information?
Is the Department of Social Services hiding mistakes and systematic problems behind the curtain of confidentiality?
Failure to meet disclosure criteria
Although several of the disclosure summaries were lacking the necessary content to comply with the statutory definition of facts and information that shall be released, one department completely failed to abide by the statute, in not only the information and facts they were supposed to release, but in denying disclosure in cases, without just cause and good faith.
This department also denied any involvement with two children at the time of their deaths, when in one of the cases the reporter of that suspected abuse exposed their previous reports of abuse publically.
Mecklenburg County Department of Social Services—Mary Wilson, Director
November 5, 2011, disclosure requests for 11 of the children that have died, because of abuse, neglect, or maltreatment, in Mecklenburg County since 2008, were emailed to Mary Wilson, Director of the Mecklenburg County DSS.
After a month and 6 days, of attempted contact, wrong email apologies, additional disclosure requests, impolite “Tyrone, please handle”, and no replies, on December 13, 2011 an email was received from Andrew Fair, which stated:
“Per your request please find attached to this email DSS statements regarding cases to which GS 7B-2909 applies. All others that you requested do not fit within that scope and cannot be released.”
Outrageously, the disclosures that were attached to the email from Andrew Fair were so far outside the scope of the laws specified definition of findings and information, that they could not even legally be considered child fatality disclosure.
For example, the disclosures for Shinaye Smith and Jalenthia Caldwell contained one, short sentence:
“YFS was not involved with the child at the time of the child’s death.”
According to § 7B-2902 “The written summary shall include any of the following information the agency is able to provide:
a. The dates, outcomes, and results of any actions taken or services rendered
b. The results of any review by the State Child Fatality Prevention Team, a local child fatality prevention team, a local community child protection team, the Child Fatality Task Force, or any public agency.
c. Confirmation of the receipt of all reports, accepted or not accepted by the county department of social services, for investigation of suspected child abuse, neglect, or maltreatment, including confirmation that investigations were conducted, the results of the investigations, a description of the conduct of the most recent investigation and the services rendered, and a statement of basis for the department's decision.”
In the case of Shinaye Smith, it is public knowledge that Mecklenburg County DSS received, at least one, previous report of abuse concerning this 3-year-old child with Down Syndrome.
On September 29, 2008, Hickory Grove Elementary School Nurse, Betty Zusin, contacted the Mecklenburg County Department of Social Services and made a report of suspected abuse after Shinaye came to school with the left side of her face swollen and bruised.
Mecklenburg County DSS did not accept this report of abuse, responding that it did not meet the statutory definition of abuse, neglect, or dependency.
Shinaye Smith died October 30, 2008, a mere month and one day after this report was received.
Her mother's boyfriend, Andre Cortez Price, has been convicted of 2nd degree murder and is currently serving 12-15 years for Shinaye’s death.
To comply with the disclosure statute, Mecklenburg county should have released information about the September 29, 2008, report of abuse, the reason it wasn't accepted, as well as any other reports they may have received, whether they were accepted or not, and the outcomes of those reports.
They did not.
Instead, Mecklenburg County DSS has asserted several times that they can find no information in their records of ever receiving a report on Shinaye.
Hiding behind confidentiality laws?
The initial “summary” released by Mecklenburg DSS about Jalenthia Caldwell does not state that DSS never had any contact or history with this child, but instead states that Mecklenburg County DSS was not “involved with the child at the time of the child's death”.
After a complaint was lodged with the County DSS Board and Mecklenburg County DSS for not providing child fatality disclosure in accordance with the law, among other things, Mecklenburg County Deputy Attorney, Tyrone Wade stated:
“Jalenthia Caldwell – As noted in our prior e-mail, DSS was not involved with this child at the time of her death. N.C.G.S. 7B-2902(c) clearly states that section 2902 does not authorize release of confidential information “unless directly related to the cause of the child fatality or near fatality.” We have no such information.”
While §7B-2902(c) does bar the release of confidential information, such as “psychiatric, psychological, or therapeutic evaluations or like materials or information pertaining to the child or the child's family unless directly related to the cause of the child fatality or near fatality”, it does not bar the release of all other findings and information.
Reports received, ACCEPTED OR NOT ACCEPTED, the dates, steps taken during the investigation by DSS and the outcomes of those investigations, and all other legally allowable information can be disclosed without releasing the "confidential information".
DSS is still required to inform the requestor of any previous involvement that they had regarding the child as afforded by the statute.
After the complaint was filed with the county DSS board and Mecklenburg County DSS for failing to provide statutory authorized disclosure, DSS sent information confirming a previous report of abuse in Jalethia’s case; they did not include the summary required by law, or any of the other required findings and information.
How many other disclosures are they denying previous DSS contact in, when in fact there was previous reports, investigations and substantiations of abuse, neglect or maltreatment?
Lacking necessary findings and information to comply with the law.
The remaining summaries released by Mecklenburg County DSS fail to contain the legal specifications that the law states they shall include.
It is abundantly clear, when compared to the law that governs these child fatality disclosures, that the "summaries", released by Mecklenburg County DSS do not meet the required statutory definition of findings and information that the law requires be released.
Take for example the disclosure regarding Demtrye Rashaad Pendleton Jr.:
“This written summary regarding involvement between the Mecklenburg County Department of Social Services and child Demtrye Rashaad Pendleton, Jr. is being made pursuant to G.S. 7B-2902:
This family came to the attention of Mecklenburg County Department of Social Services, Division of Youth and Family Services on 24 August 2011 when a referral was received alleging that the child was injured and had been taken to the hospital. The child was subsequently released from the hospital. While DSS was continuing to investigate the child was injured again, re-admitted to the hospital and passed away from those injuries.”
Demtrye was initially admitted into the hospital August 24, 2011 with a skull fracture and bruises, that the police believed could be consistent with a fall. An investigation was initiated and was still in process the day he died.
According to the child fatality disclosure law, Mecklenburg County DSS is required by law to release certain information that would provide insight to the public of their investigation into the abuse of this child.
The questions asked below should have been answered by the releasable information, but instead these questions remain unanswered because Mecklenburg County DSS chose to ignore the statute and not comply with its requirements.
- Exactly what steps did DSS taking to investigate the allegations of abuse concerning Demtrye?
- What type of actions did DSS take to protect Demtrye?
- Where is the confirmation that investigations were conducted?
- Where is the description of the conduct of the most recent investigation?
- Why was Demtrye released from the hospital into his parents care, who made that decision and why?
Child fatality disclosure laws exist to answers these very questions. When a child dies, especially with DSS involvement the public wants to know why. The public wants to know how a child that was involved in an active DSS abuse investigation was murdered. The public has a right to know exactly what DSS is doing with our tax dollars to protect our nation’s children and when they fail to do so, the public has a right to know what happened, and to examine the case and demand change to better protect children.
Denied disclosure without just cause or good faith
Other child fatality disclosures that were requested, were declined according to Andrew Fair's vague explanation, because they "do not fit within that scope and cannot be released.”
§ 7B-2902 authorizes release of disclosure unless there is a legally justifiable reason to decline that release.
Yet in several cases, Mecklenburg DSS declined to disclose, they had released that information publicly on a previous occasion or there had been a conviction or guilty plea in a criminal trial of the person responsible for the child's death.
Below is a list of the children on which disclosure was sought, the reason Mecklenburg County DSS failed to comply with the law and their reason for refusal.
- Marcus Davis Jr. Mecklenburg County DSS released this information publicly on July 18, 2011. You can see it here. DSS has already publically released this information; therefore, disclosure cannot, now be declined.
- Mecklenburg DSS response: Marcus Davis, Jr. – DSS previously released a statement on this case as noted in your e-mail. However, after that release of information, criminal charges were brought. Pursuant to N.C.G.S. 7B-2902(d) in reviewing your request for records, DSS consulted with the District Attorney’s office and the District Attorney’s office directed DSS not to release any information as a prosecution is pending.
Special note: In the case of Marcus Davis Jr., Mecklenburg County DSS released information of their long history with this family, AFTER the arrest of his mother, not before as stated by Tyrone Wade.
According to WBTV,
"Shannon Shmir Merriman, 22, was arrested Wednesday, July 13, at Carolinas Medical Center where her 1-year-old son, Marcus Markee Davis Jr., was hospitalized. The Charlotte-Mecklenburg Police Department initially charged Merriman with felony Child Abuse.
On Monday, July 18, the Mecklenburg County Department of Social Services released a statement saying they were first contacted in June 2010 regarding the welfare of Marcus Davis Jr..."
- Demtrye Rashaad Pendleton Jr.--The "disclosure" DSS sent about Demtrye Pendleton does not meet the required information that is to be disclosed in these cases, specifically, those described in 7B-2902 (2) subsections (a), (b), and (c).
- Mecklenburg DSS response:Demtrye Pendleton, Jr. – Criminal charges currently pending against James Cleveland. Pursuant to N.C.G.S. 7B-2902(d) in reviewing your request for records, DSS consulted with the District Attorney’s office and the District Attorney’s office directed DSS not to release any information as a prosecution is pending.
- Zione Washington--Michael Damion Walker plead guilty on March 11, 2011 and was sentenced to 28 to 36 years and prison. There is no legal reason to deny disclosure in this case.
- Mecklenburg DSS response: Zione Washington – Our database shows no CPS history involving this child.
- Nakyiah Chapman and Na'jhae Parker--Mecklenburg County DSS released this information publicly on April 1, 2010. You can see it here. DSS has already publically released this information; therefore, disclosure cannot, now be declined.
- Mecklenburg DSS response: Nakyiah Chapman/Na’jhae Parker – As you state, DSS previously released a statement regarding this case. It should have been attached to the e-mail sent to you but it was not. That was inadvertent. I have attached it to this email.
- Josiah and Gabriel Hawthorne--Fatality because of neglect is specifically covered under the statute, further, Mecklenburg County DSS released this information publicly on March 5, 2010. You can see it here. DSS has already publically released this information; therefore, disclosure cannot, now be declined. Furthermore,Orgal Opata, plead guilty June 1, 2011 and was sentenced to 10 years. There is no legal reason to deny disclosure in this case.
- Mecklenburg DSS response:Josiah and Gabriel Hawthorne – Attached is the statement you requested. It is listed under the mother’s name (Opata) rather than the children’s names and thus was not initially captured.
- Ellijah Burger--The disclosure that is “assumed” to be in regards to Ellijah Burger, starts out, "This written summary regarding involvement between the Mecklenburg County Department of Social Services and child Shinaye Smith is being made pursuant to G.S. 7B-2902:". Second, the "disclosure" DSS sent about "Ellijah Burger" does not meet the required information that is to be disclosed in these cases, specifically, those described in 7B-2902 (2) subsections (a), (b), and (c).
- Mecklenburg DSS response:Ellijah Burger – I have provided a revised copy of the statement previously given to you which I hope will be more readable. Be aware that some of the terminology such as “services needed” or “services recommended” have specific meanings pursuant to the State manual. You can find additional information at http://info.dhhs.state.nc.us/olm/manuals/manuals.aspx?dc=dss
- Jalenthia Caldwell--The "disclosure" DSS sent about Jalenthia Caldwell does not meet the required information that is to be disclosed in these cases, specifically, those described in 7B-2902 (2) subsections (a), (b), and (c). The disclosure "statement" merely states that DSS was not involved with the child at the time of her death. Did DSS have any contact with her, previous reports or any other contact with her that is supposed to be disclosed under the statute? If DSS had previous contact, reports, etc., they are required to disclose that information in accordance with the statute.
- Mecklenburg DSS response:Jalenthia Caldwell – As noted in our prior e-mail, DSS was not involved with this child at the time of her death. N.C.G.S. 7B-2902(c) clearly states that section 2902 does not authorize release of confidential information “unless directly related to the cause of the child fatality or near fatality.” We have no such information.
- Tiffany Wright--The "disclosure" DSS sent me about Tiffany Wright does not meet the required information that is to be disclosed in these cases, specifically, those described in 7B-2902 (2) subsections (a), (b), and (c).
- Mecklenburg DSS response:Tiffany Wright – As you are probably aware from media reports, criminal charges were brought in this matter and subsequently dismissed. The case remains open. Pursuant to N.C.G.S. 7B-2902(d) in reviewing your request for records, DSS consulted with the District Attorney’s office and the District Attorney’s office directed DSS not to release further information. You were provided with a copy of the statement that DSS previously released. We can provide no further information.
Special Note: Not once does DSS ever mention that Tiffany's daughter Aaliyah was born prematurally and died a week after her mother was shot and killed. Two children were lost during this senseless and still unsolved crime.
- Shinaye Makayla Smith--The disclosure that DSS sent in this case states that DSS was not involved with the child at the time of the child's death. It is publicly known that DSS had received previous reports (see them here) about this child, and according to the law DSS is required to disclose them. Andre Cortez Price is in prison, convicted of 2nd degree murder in this case. There is no legal reason to deny disclosure on this case.
- Mecklenburg DSS response:Shinaye Smith – The prior release to you stated that DSS was not involved at the time of the child’s death. To dispute that, you provide evidence of a media report that someone made a report to DSS. The story goes on to state, however, that DSS did not accept the case for investigation. I cannot speak to the accuracy of the media but upon review of our database the agency is unable to find any case involving Shinaye Smith during the timeframe you indicated.
- Canell "C.J. Durant, If this fatality cannot be released because of one of the reasons in 7B-2902(d) then a legally, justifiable reason to decline disclosure should be provided.
- Mecklenburg DSS response: Canell Durant – Criminal charges have been brought in this matter. Pursuant to N.C.G.S. 7B-2902(d) in reviewing your request for records, DSS consulted with the District Attorney’s office and the District Attorney’s office directed DSS not to release further information.
A few new disclosures were ultimately emailed, but they too are statutorily lacking the information and findings required by law.
Subsequent contact with Mecklenburg County Youth and Family Services Managing Attorney, James E. Yeager, and other Mecklenburg County employees, has not produce the required statutory data.
Let them be heard
There is obviously a huge discrepancy between the law and what DSS is supposed to do, and what DSS is actually doing.
This type of total disregard for the law, treatment of the public and failure to do everything humanly possible to protect children, should not be tolerated.
Disclosure exists to provide transparency in child fatality cases to ensure that mistakes and failures are identified and dealt with, so no other child suffers or dies because of the very errors that might have played a role in another child’s death.
While DSS might want to hide cases, where children have died with previous or during CPS investigations or open cases, to protect the department's "reputation", (or in some cases political or even illegal reasons), it is not these CPS departments that need protection.
Frankly, when the Department of Social Services, behaves this way, it makes the public justifiably distrust them and question the truthfulness of any public admissions, releases, or statements made by DSS.
Children’s lives depend on the transparency of these cases, it is vitally important, for their protection, that these cases be open to public scrutiny, honest disclosure and thorough inspection, so if there are policy inconsistencies, law violations, or any other protection issues, they can be corrected to ensure the most efficient child protection services possible.
The cost of these disclosures is the death or near death of a child, usually at the hands of a person who was supposed to protect and love them. These children deserve to have the truth told about what happened to them, the tragedy of their deaths should be remembered, discussed, and examined to help protect other children.
These children have stories to tell, that MUST be heard, do not silence them in death, as they were silenced in life.
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