When Confidentiality Dies with a Child

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Detroit, Mich.—Social workers and Child Protective Services investigators across the nation are adjusting to a new reality - their once confidential cases are increasingly being exposed to the public and the press.

Confidentiality provisions established decades ago to protect the privacy of families and children in child protection systems are crumbling in more states as legislators and child welfare agencies respond to demands for more accountability in child welfare. The news media can access more confidential information than ever before, especially in cases where a child has died.

"Every worker lives with that fear whenever something is on the news about a child dying,' said Angela Hanna, a 25-year veteran CPS investigator for the Wayne County Family Independence Agency in Detroit, who has been involved in several high-profile media cases. "You ask what side of town it was on? Is it my area? What street? What family?"

Those who work with or advocate for abused children are divided about the movement. "We oppose the idea that children and parents could be exposed in the press," said Janlee Wong, executive director of the California chapter of the National Association of Social Workers (NASW).

But Nicholas Scoppetta, commissioner of New York City's Administration for Children's Services, said a new state law to release information on some cases is "excellent for holding our people accountable, us accountable, and maintaining credibility for the public.'

The results can be painful: In Georgia, the release of such information last year prompted the demotion of the state's Department of Family and Children Services chief.

The National Clearinghouse on Child Abuse and Neglect Information says 13 states allow state child welfare agencies to release information under some circumstances - usually restricted to cases in which a child has died. Others, such as Arizona, Colorado and California, allow journalists to petition juvenile or family court for access to reports in child protective proceedings.

In California, the director of the Los Angeles County Department of Children and Family Services (LADCFS) advocates for disclosing more information that is considered confidential. "While I believe that children's personal information, especially mental health reports, should be kept confidential, I think a public agency has an absolute responsibility to explain its own actions,' said Director Anita Bock.

'Potentially Destructive'

Not everyone agrees that open access to heretofore confidential records about maltreated children is a good idea.

Wong of the NASW in California said his group opposed state legislation proposed this year to open juvenile court dependency hearings to the public and the press. (The legislation failed.) Wong agrees that the child welfare system needs to be reformed and that some reforms require public support. "One of the ways to do that is to bring the press in and let them write stories about how the system needs to be fixed," he said.

But "their cases are already so difficult and complex that we don't need an additional kind of factor that would be potentially disruptive, potentially harmful, potentially destructive to the case," he said. "If a kid is abused, his name gets out in the press and he goes to school, how would that kid feel if some insensitive other kid starts taunting him, calling his parents abusers?'

However, Wong and others could not identify any case in which either children or social services workers had been harmed by publicity about the case.

Howard Davidson, director of the American Bar Association's Center on Children and the Law, said the U.S. Department of Health and Human Services requires agencies to maintain confidentiality or risk losing federal funding. But Davidson said the agencies "are not at peril if a child has died or in what is called a 'near fatality.'"

But states do risk losing federal funds if their juvenile court dependency hearings are open to the press. "I think there will be some legislative efforts in Congress next year when the Child Abuse Prevention and Treatment Act is being re-authorized" to remove that risk, Davidson said.

In California, LADCFS director Bock said, "I have seen more damage done by failing to share information than damage done by disclosure." Bock, a former official with the Florida Department of Social Services, cited refusals by agencies to talk to each other about a family's history because of a perceived need to maintain confidentiality.

"I'm not promoting indiscriminate access, given that I feel that there are things which must remain private,' she said.

Benefits of Disclosure

Linda Spears, director of child protection for the Child Welfare League of America, said confidentiality "makes it more difficult for the public to understand the complexity of the work, the challenge of the work, and what it really takes to accomplish the work."

"Kids shouldn't live their lives on the front pages of newspapers and families also should have some measure of privacy, but that conflicts with a nearly equally important value: accountability,' Spears said. "One should not be an excuse to not deal with the other."

Spears said that allowing responsible reporters access to sensitive information helps tell stories about the system that the public needs to know. "Historically, there's been too much closed-doorness,' she said.

The push to open the door comes partly from administrators such as Scoppetta in New York, who want to respond to published accusations that "the system" failed a child. A New York State law named for Elisa Izquierdo, a six-year-old girl who died of abuse in November 1995, allows administrators to release information about what the state child protection agencies did or didn't do in serious cases such as a child's death. Scoppetta provides written reports on his agency's actions in such cases.

"Elisa's Law is a sort of relaxing to a certain extent of the confidentiality restrictions that administrators used to operate under," he said.

Fallout in Georgia

Some administrators have gotten burned by the light shed on CPS cases.

Jane Hansen, who covers children's issues for the Atlanta Journal-Constitution, challenged Georgia's confidentiality laws in 1989. She and her newspaper sued the state to gain access to the CPS files of hundreds of children who had died.

"I kept running up against confidentiality and so I decided that there was no reason for confidentiality if a kid was already dead,' Hansen said. "Why should we not be allowed to look at the record of what government had or had not done?'

She published a series on the CPS cases, which led to a new law requiring the Department of Family and Children Services (DFCS) to release its files in cases where a child has died. The law prohibits news organizations from disclosing certain information from those files, such as the names of siblings.

Last year the newspaper revisited the issue and again found multiple serious problems in the handling of cases of children who died. As a result of the latest series, "the head of the DFCS was demoted and the head of the largest county DFCS was let go,' Hansen said. The state also created an ombudsman to review problem cases.

But reporters still don't have access to cases in which children do not die, and juvenile courts in Georgia remain closed to the public without prior permission of a judge.

"Those [child welfare] agency records are more protected than national security secrets,' said Hansen. "It's become more a protection for the agency and a way to prevent having anybody looking over their shoulder to see what they've done wrong."

Michigan's Balancing Act

In Michigan, the state's Child Protection Act was changed this year to allow the director of the Family Independence Agency (FIA) to release information from CPS or foster care files. The director must first decide that releasing the information would not harm any child and also must allow parties in the case (such as parents) to object in court.

Michigan FIA Director Doug Howard said he has considered four requests (all from the news media) this year, and that he released information in two cases, rejected one request and is preparing a response to the other.

But Howard will only answer questions; he will not release copies of FIA records or executive summary reports detailing the agency's actions. Sharon Claytor Peters, executive director of the advocacy group Michigan's Children, said her agency has "concerns about those privacy rules."

"If you take them too far it really ends up being a shield for the department and you don't have a chance to be a kind of watchdog,' Peters said.

Deborah Dinco, executive director of one of Michigan's largest private foster care agencies, Orchards Children's Services, said workers worry about their names coming out in newspapers or on television: "They wonder about how could this much [information] be known by the news media. They wonder how could my name get in the papers? I do think it has a negative impact on morale. We've had workers resign because they think they're being watched from all sides."

Youths' View

Children and youth who have been in the child welfare system seem to be divided themselves on the issue. California Youth Connection (CYC), an advocacy organization of foster care children, took no official stance on the move to open California Juvenile Courts to the public.

"The youths themselves were divided,' said Victoria Finkler, CYC legislative and policy coordinator. "Some thought it was a good idea because of the things that they had been through, maybe trying to get someone in court to help them, or they saw errors or things that were done that they thought weren't right. ... But other youth felt very strongly that they wouldn't want anyone knowing their business or their family's business and didn't feel it should be open to the public."

Alan Watahara, head of the California Partnership for Children, said people in the child welfare system should not need press coverage to enact reforms. He said advocates need to work more closely with the news media without violating children's privacy rights.

"We haven't gone out and educated reporters, we haven't worked with knowledgeable journalists about how to tell these stories,' Watahara said. "Instead, we wait for that horror story and we do a Deep Throat," meaning secretly release information.

The question is whether it's better to hope information does not leak out, or to try to control the information flow through official channels. Los Angeles County Judge Michael Nash, former presiding judge of juvenile court, said that public access usually means access for the news media, and that officials in the child welfare system should try to work with journalists to get accurate and fair coverage.

"I personally believe that the media is generally responsible and I would just as soon trust the media and be open with the media because I think that to take an oppositional approach is a no-win situation for anybody and everybody,' Nash said. "Occasionally, a reporter may screw up a story. ... It's just the risk you take because by and large we're all better served by an open system because it provides greater accountability."