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DCS provides revised plan to investigate child deaths

6:08 AM, Apr 30, 2013   |    comments
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By Anita Wadhwani, The Tennessean

Attorneys for the Department of Children's Services returned to federal court Monday to present a revised plan for investigating child deaths and near deaths.

They described the changes as a "significant step forward" for the embattled agency.

DCS is under a federal court order to revise its system for investigating child deaths. Since January 2011, the agency has had no formal guidelines for tracking or investigating the deaths of children in custody or children brought to its attention for allegations of abuse or neglect.

It was a system that DCS attorney Jon Lakey conceded to the judge was "deeply flawed" and may have left some child deaths unaccounted for completely.

In the same courtroom three months ago, DCS lawyers had acknowledged that they had miscounted just how many children had died under the watch of the agency.

In January, DCS told U.S. District Court Judge Todd Campbell that, in fact, 22 children had died in state custody in 2011 and 2012, not the 11 the agency originally reported to the court. And instead of 88 deaths of children with prior contact with DCS, there were about 171 instead.

Campbell on Monday asked DCS to explain how the agency could have miscounted so many deaths.

"What accounts for this large variation in numbers?" Campbell asked.

Lakey provided no specific details.

"I can't tell you any more than the process we had before was flawed. It was a flawed process," Lakey said.

Since then, however, Lakey said the agency has followed the judge's suggestion to compare state death certificates to its database of children to determine how many have died in the past two years. Most of the previously uncounted deaths were discovered this way, he said.

The agency is confident that the 22 in-custody deaths is an accurate count, Lakey said.

But Lakey also conceded that DCS officials may never be 100 percent sure about another number. They think 171 children who were not in state custody but had prior contact with DCS died in those two years, but they can't be sure.

"To say there isn't one or two or an infant we missed, I can't say," Lakey said.

Another three children died who were involved with DCS' juvenile justice system, but their deaths were not the subject of Monday's court hearings, which focused on children in custody and children at risk for entering custody. In total, 196 children in custody or with prior DCS contact died in 2011 and 2012, according to DCS figures.

'A step forward'

Going forward, however, the agency has created a new and detailed plan for investigating and accounting for each child's death that includes a rapid response to each reported fatality, a 90-day timeline for reviewing each death, and quarterly and annual reports outlining the result of their investigations, including detailing any identified missteps by the agency that may have led to the deaths, Lakey said.

After the one-hour hearing, DCS Commissioner Jim Henry said he was pleased with the progress the agency had made in three months. Henry was appointed as the agency's head Feb. 5 after the resignation of his predecessor, Kate O'Day.

"I think (the judge) sees we made some progress," Henry said. "Of course, we have a long way to go. I think it's the first time we took a step forward. It seems like every time we came to court we seem to take a step back."

In the next 30 days, DCS will create an implementation plan to put the new child fatality review process into place, Lakey said. By August, the agency plans to have the formal review process in place for every death or near death of a child under their care.

The agency will retroactively investigate child deaths to Jan. 1 of this year. This year, seven children have died in state custody. DCS has not yet provided the number of children who had prior contact with the agency and subsequently died this year.

Ira Lustbader, an attorney for New York-based Children's Rights, which has oversight of DCS' foster care system and brought the flawed child fatality investigation process to the court's attention, said he was more optimistic about DCS' plans going forward.

"Because the process was flawed, kids were at risk every day," Lustbader said. "It was unfortunate we needed to get to court to get back on this track, but I think we're in a better position than we were three months ago."

The parties return to court Sept. 9 to update the judge on DCS' progress.

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