By Tony Gonzalez / The Tennessean
More Tennessee children died in state custody during the past two years than what state officials have been saying for months, according to information revealed Thursday, prompting Gov. Bill Haslam to appoint a senior adviser to analyze problems with the Department of Children's Services.
The appointment was the latest move during a flurry of activity on Thursday, when DCS:
• Admitted it failed to account for nine deaths of children in custody in 2011 and 2012;
• Agreed to provide more fatality records to a watchdog group; and
• Announced it will reform its internal child fatality review process.
DCS Commissioner Kate O'Day will continue running day-to-day operations while Larry Martin, a senior adviser in the governor's office, will "take a deeper and closer look . . . to see what's working and what's not," said Alexia Poe, spokeswoman for the governor.
Martin has worked in the governor's office since May 2012.
In a statement, the governor said the improper documentation of child deaths was "not acceptable."
"While it is no secret that DCS has struggled with systemic problems since its inception, we have to get it right," Haslam said.
The department previously has said that 11 children died in state custody. They later changed that to 14.
The state's latest count includes 25 children in state custody - kids living in foster homes, group homes or juvenile detention centers - who died in 2011 and 2012.
The revised death toll came to light as DCS and a child safety watchdog group prepared for a federal court hearing for Friday in Nashville in what is known as the "Brian A." case, a lawsuit that created a team of experts to watch over DCS for the past decade.
"Their inability to even track the number of children who died in their custody only underscores the need for the whole fatality review process to be fixed right away," said Ira Lustbader, attorney with New York-based Children's Rights, which joined with Tennessee lawyers to sue DCS in 2000.
Friday's court hearing has long been scheduled for DCS to give updates to Judge Todd J. Campbell about whether the department's new computer system keeps reliable data.
But the tone changed two weeks ago when Children's Rights filed a motion asking the judge to force DCS to turn over child death records, saying the agency may be "putting children at risk of harm."
DCS had provided some records, but refused to give over others.
On Thursday, citing recent "negotiations," the department agreed to provide a new batch of internal documents to Children's Rights within seven days.
Separately, on Wednesday, a Davidson County judge ordered DCS to provide some child fatality records to The Tennessean and a coalition of media organizations that sued for access.
But while asking for the fatality records, Children's Rights learned from DCS that more children died in state custody than previously reported. In response to requests by The Tennessean and Children's Rights in recent months, the state hasn't been able to provide a consistent number of child fatalities.
"I don't know why there is such a dramatic discrepancy, but we'll certainly be talking with (DCS) and we'll get to the bottom of this," Lustbader said.
In assigning Martin to work with O'Day, the governor said he believes the state needs to take a different approach to the work being done by DCS.
"To me this really isn't about data, or one employee, or even one case," he wrote. "This is about getting it right for the children who need our help."
Republican state Rep. Jim Summerville, a recent critic of the DCS and O'Day, said he will give Martin the "benefit of the doubt" to make changes.
"I hope the governor will keep his promise, and I think he will and that Mr. Martin will probe deeply into this department, which is in shambles right now," Summerviille said. "He's got a big job ahead of him. The governor deserves the chance to make this right. He's a good manager.''
Internal reviews to be fixed
In the Thursday court filing, DCS has also agreed to work with experts to fix the internal process that officials use to review child fatalities - and to make improvements within 90 days.
The department's Child Fatality Review Team was designed to investigate deaths and figure out what can be done to prevent problems in the future, and can recommend training or discipline for caseworkers and ways to improve investigations.
Two weeks ago, Children's Rights raised concerns about the team and its "grossly incomplete" records.
Independently, through department records and interviews, The Tennessean detailed how the fatality review team fell behind on its work, didn't conduct reviews according to policy, and often didn't provide any recommendations for how front-line workers can improve.
Department records showed how DCS investigators allowed abusive parents to keep children who later died.
"The process as it's existed for the past two years has clearly been very poor and absolutely must be fixed," Lustbader said.
The fatality team informally did away with its own written policy in January 2011, and began following a one-page "protocol" instead.
After falling behind that year, the team caught up on overdue cases in 2012 by reviewing nine cases from 2010, 67 from 2011 and 58 from 2012.
In late 2012, DCS senior staffers started working on a new way to do the fatality reviews.
Separately, other staff members led by DCS Commissioner Kate O'Day began working with Vanderbilt University on yet another new way to analyze fatal cases.
Whether that approach, known as "event analysis" will be good enough, is not yet clear.
"We're happy to talk about new ideas they have, but in the end, this is going to be a revised, robust practice that provides much-improved safety for kids," Lustbader said.
The department's promises to provide records and fix its review team, which Children's Rights supports in court filings, still require the judge's approval.
The issues raised by Children's Rights play a central role in how well a group of outside experts is able to examine the department.
For more than a decade, experts making up the Technical Advisory Committee, or TAC, has watched over DCS as a result of a settlement agreement in the "Brian A." case.
The settlement requires DCS to improve how it protects foster children and finds them safe, permanent homes.
The department has backtracked on some prior progress. And in other areas, the department's faulty computer software, the Tennessee Family and Child Tracking System, or TFACTS, has not produced reliable information.
When the case last came to Campbell's courtroom in October, the judge said he was concerned about the quality of DCS data and said he "just can't tell" whether the department is doing its job.
That hearing provided more details about the old-fashioned paper trails being created because of problems with the installation of the $27 million TFACTS software in 2010. The software is supposed to hold the official case record of each child and family served by DCS and be able to create reports about caseloads, abuse investigation response times, and records of face-to-face visits with foster children.
DCS leaders have said the software will be totally fixed by June, at a cost of about $4 million.
But Children's Rights hasn't been waiting around.
The judge granted a request in October that an independent analysis of TFACTS take place.
Court filings since that time say the latest analysis will be completed by April 4.
A consultant with expertise with similar software, John Ducoff, has already visited Tennessee twice.
DCS has continued to make improvements, and the U.S. Department of Health and Human Services is scheduled to take a look at the software in the spring, court records show.