Federal laws require disclosure in death by abuse, but not natural causes.
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The Hawaii Department of Human Services has come under heat for not releasing more information about the recent death of a 9-month-old in foster care.
It’s not unusual for states to stay tight-lipped about the deaths of children in state custody, a national expert told Civil Beat.
Yet federal law requires states to allow the public to access information about any child who dies from abuse or neglect, said Bill Grimm, an attorney for the National Center for Youth Law. That’s “whether they’re in foster care or not,” he said.
Lax federal enforcement, however, has allowed states to develop “virtually a hodgepodge of public disclosure laws,” said Grimm, who has fought for more openness.
At a House hearing last week, Human Services Director Patricia McManaman said her office would have to weigh public interest against potential harm to family members before it released more information.
“Not all fatalities rise to the public’s right to know,” she said.
In August, 9-month-old Jayvid Waa-Ili died of yet-unknown causes while in state custody. McManaman said at the hearing that details of his death would be released only to Waa-Ili’s legal guardians and those who have a legal right to know.
He is the 30th child to die in foster care since 2000, according to figures released by Gov. Neil Abercrombie’s office. McManaman said at the hearing that she had reviewed 25 of those cases and found only one child that had died of abuse.
Civil Beat asked the governor’s office for a list of names, dates and causes of death for the 30 children.
The state attorney general’s office responded, declining to provide names or dates. But the office did send Civil Beat a list of causes of death for 25 out of the 30 children who have died in foster care in the past decade. The causes of death for the remaining children — except for Waa-Ili, whose toxicology report will take weeks — would be made available on Monday, said Joshua Wisch, the attorney general’s spokesman.
Causes ranged from sudden infant death syndrome to injuries sustained in a car accident.
The list is not in chronological order, Wisch wrote in an email. He reiterated the state’s position that only families and others such as doctors should know the details of a child’s death.
“According to article I, section 6 of the State Constitution, the right of people to privacy is recognized and shall not be infringed without the showing of a compelling state interest,” he wrote. “Mere curiosity does not count.”
The list includes two deaths in which physical abuse was confirmed — one in which parents were found to have been abusive — and a third child who died “as a result of injuries by unknown perpetrators.” The perpetrator was identified in only one of those three deaths.
McManaman did not respond to requests for comment Friday.
Federal Mandate Only Covers Abuse
The federal Child Abuse Prevention and Treatment Act (CAPTA) requires a state to ensure that its child welfare program includes, among other things, “provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality.”
States must comply with the law in order to receive CAPTA funds. Hawaii received $140,900 in CAPTA money for 2011, according to the DHS.
The attorney general’s list does “not include the child’s name, date of birth, date of death or other personal information,” Wisch wrote. “Hawaii’s laws and administrative rules are consistent with CAPTA.”
But disclosure is a different story if that death is not the result of abuse or neglect. Grimm said there are no federal laws requiring disclosure of information about a child who dies of natural causes in foster care.
DHS Moving in a New, Quieter Direction
In Hawaii, the reluctance to share information is a reversal from DHS decisions under previous director Lillian Koller, who posted on the Web the state case files of Erwin Viado Celes, a 19-year-old who committed suicide in 2010.
Grimm said Koller’s decision to publish information about children who had died was “exceptional.”
“The thinking was, well maybe this is the beginning of a trend,” he said. “I don’t think other states have followed, though.”
Koller’s openness came under criticism at last week’s hearing.